Domestic Violence, Crime and Victims Bill [Lords]

Public Bill Committee, 6 July 2004.

Standing Committee E

Schedule 7 - Minor and consequential amendments

Ann Cryer (Labour, Keighley)

I beg to move amendment No. 124, in schedule 7, page 44, line 14, at end insert—

'43 In Schedule 21 to that Act (Determination of minimum term in relation to mandatory life sentence) after sub-paragraph 10(e) insert—

''(ea) a connection to a forced marriage or attempted forced marriage,

(eb) a connection to an offence aggravated by the victim's perceived conduct as defined under section 145A,''.'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: new clause 40—Forced marriage—

'(1) A person commits an offence if he causes or attempts to cause another person to enter into a forced marriage.

(2) In this section ''forced marriage'' means a marriage entered into in which one or both parties has been subject to—

(a) intimidation,

(b) harassment,

(c) false imprisonment, or

(d) domestic violence

with the intent to cause the party or parties to enter into the marriage.

(3) For the purposes of this section ''domestic violence'' means—

(a) physical abuse;

(b) sexual abuse;

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

(i) intimidation;

(ii) harassment;

(iii) false imprisonment;

(iv) damage to property;

(v) threats of physical abuse, sexual abuse or psychological or emotional abuse;

(d) any act defined under paragraphs (a) to (c) directed against a dependant of the person,

(e) threats of any act under paragraph (d)

committed by a cohabitant, relative or member of the same household.

(4) In this section—

''cohabitant'' and ''relative'' have the same meaning as in section 62 of the Family Law Act 1996;

''member'' of a particular household has the same meaning as in section 5 of this Act.

(5) Behaviour which does not involve actual or threatened physical or sexual abuse may be psychological or emotional abuse for the purposes of subsection (3)(c).

(6) Without limiting subsection (2)—

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

(b) a number of acts that form part of a pattern of behaviour may amount to domestic violence for that purpose, even if, taken individually, some or all of those acts would not be of sufficient severity to meet the criteria in subsection (3).

(7) A person (whether or not a United Kingdom national or permanent United Kingdom resident) is guilty of an offence if he aids, abets, counsels or procures a person (whether or not a United Kingdom national or permanent United Kingdom resident) to commit an offence under subsection (1).

(8) An act is a relevant act for the purposes of this section if it would constitute an offence under subsection (1) or (7), and—

(a) it is done in relation to a United Kingdom national or permanent United Kingdom resident (whether or not done in the United Kingdom), or

(b) it is done in the United Kingdom (whether or not by a person who is a United Kingdom national or permanent United Kingdom resident), or

(c) it is done outside the United Kingdom by a United Kingdom national or permanent United Kingdom resident.

(9) If an offence under this section is committed outside the United Kingdom—

(a) proceedings may be taken, and

(b) the offence may for incidental purposes be treated as having been committed,

in any place in England and Wales or Northern Ireland.

(10) A person to whom an act is done which would constitute an offence under subsection (1) or (7), but which is not a relevant act, is a victim (as defined by section 29 of this Act), while resident in the United Kingdom.

(11) A United Kingdom national is an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 (c.61) is a British subject, or

(c) a British protected person within the meaning of that Act.

(12) A permanent United Kingdom resident is an individual who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 (c.77)).

(13) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 10 years, or a fine, or both;

(b) a summary conviction, imprisonment for a term not exceeding 18 months, or a fine not exceeding the statutory maximum, or both.

(14) After section 12(f) of the Matrimonial Causes Act 1973 (c.18) (Grounds on which a marriage is voidable) insert—

''(g) that either party was subject to an offence under section [Forced marriage] of the Domestic Violence, Crime and Victims Act 2004''.

(15) In Schedule 21 of the Criminal Justice Act 2003 (c.44) (Determination of minimum term in relation to mandatory life sentence) after sub-paragraph 10(e) insert—

''(ea) a connection to a forced marriage or attempted forced marriage,''.'.

New clause 41—Victim's perceived conduct ('honour crimes')—

'In Part 12 of the Criminal Justice Act 2003 (c.44) after section 145 (Increase in sentences for racial or religious aggravation) insert—

''145A Increase in sentences for offences aggravated by the victim's perceived conduct (honour crimes)

(1) This section applies where a court is considering the seriousness of an offence.

(2) If the offence was aggravated by the victim's perceived conduct as defined by this section, the court—

(a) must treat that fact as an aggravating factor, and

(b) must state in open court that the offence was so aggravated.

(3) For the purposes of this section an offence aggravated by the victim's perceived conduct means an offence motivated (wholly or partly) by a belief that—

(a) the victim's conduct has disgraced the victim's family by defying cultural rules, or

(b) the victim has aided, abetted, solicited or encouraged conduct by a person considered to have disgraced the person's family by defying cultural rules.

(4) 'cultural rules' includes codes of behaviour (whether or not formally expressed) relating to religious, racial, or ethnic communities.''.'.

Ann Cryer (Labour, Keighley)

Amendment No. 124 is a probing amendment. Grouped with it are new clause 40, which deals with forced marriages, and new clause 41, which deals with perceived conduct and honour crimes. First, I will speak about honour crimes—mainly, honour killings—because there is a clear connection between crimes of honour and honour killings and forced marriages.

The problem with honour killings is that they go unrecognised. A couple of weeks ago, there was a conference in The Hague, which has been mentioned in various contexts. Earlier in Committee we talked about domestic homicide reviews; such reviews would be useful in identifying killings related to crimes of honour. About a year ago, I did a report for the Council of Europe Committee on Equal Opportunities for Women and Men. I was asked to be the rapporteur on honour killings in the 52 states of the Council of Europe. It was traumatic to go into all the details of the issue, but the worst thing was that it was extremely difficult to get information on the subject: because none of the states of Europe identify honour killings as such, it is extremely difficult to get facts and figures.

At the conference in The Hague, police officers said that if we do not know which killings are related to crimes of honour it is extremely difficult to establish patterns. Police forces in areas with large ethnic communities would be helped if, on sentencing or at some point during the proceedings, mention was made of honour killings, and if honour killings were specifically treated as such. The amendment mentions

''a connection to an offence aggravated by the victim's perceived conduct as defined under section 145A'',

and new clause 41 refers to an

''Increase in sentences for offences aggravated by the victim's perceived conduct (honour crimes)''.

I am not pushing for all of that; I simply point out to the Government and the Minister that if we could identify such crimes, police forces throughout the country would know what they were looking for. Social services departments, schools and colleges would all be in the picture about things that might go wrong for a particular girl or woman, and could identify those things before she was killed. That is what I really want to ensure this morning. I want to make the Government aware and I want them to look into the issue.

When I prepared the Council of Europe report 12 months ago, I heard again and again that people

did not know what was happening, even though all the warning signals were present beforehand. Even though things were going wrong in a girl's life, she lacked protection because people did not know the pattern. In fact, they were not even establishing patterns. The clause on domestic homicide reviews will help greatly to identify what things were going wrong in a girl's life before she met a horrible end. Colleges, schools, social services departments and the police will therefore know where to look.

New clause 40, which embodies the main thrust of my arguments, would deal with forced marriages. It begins:

''A person commits an offence if he causes or attempts to cause another person to enter into a forced marriage.''

The Government have done some pretty brave and imaginative things to protect girls from forced marriage, but thus far we have not really carried with us the various communities that go in for forced marriage, even though they have been sympathetic and made all the right noises—certainly the communities in my constituency have done so, although five years ago, when I first raised the issue in an Adjournment debate, I was told that there was no such thing as forced marriage; my constituents said that I had dreamt it up. Now, every week a girl comes to me to ask for help in putting a stop on her husband's entry clearance.

We have a term for such girls now: reluctant sponsors. Reluctant sponsors know very well the difference between a forced and an arranged marriage. One of the points that keep being put to me is that I do not understand the culture and that the marriages are arranged, not forced. There is a clear difference; yet the issue of forced marriage has kept raising its ugly head during the five years in which I have been dealing with it. My hon. Friends the Members for Bradford, North (Mr. Rooney) and for Bradford, West (Mr. Singh) deal with as many as two cases a week of girls who are reluctant sponsors.

Such girls have the support of many of the community leaders and of many other women in their community, and they certainly have the support of the Government and. Almost immediately after my Adjournment debate five years ago, the Home Office set up a working group, jointly and very capably chaired by Baroness Uddin and Lord Ahmed, to consider the causes and the results of forced marriage. As a result, all sorts of changes were made to the way in which the various statutory authorities worked. I am proud to say that West Yorkshire police, who might not come off terribly well in the league tables, have really blazed a trail in protecting these unfortunate women, for example, they have established extremely good relationships with the police in Mirpore and Pakistan. In addition, there are some terrific people working in the Foreign Office consular division in Islamabad helping such girls. We are doing all that we can.

More recently, my right hon. Friend the Minister for Children issued strong guidelines to social services departments. Since then, the guidelines have been sorted out and thinned down and have been sent to most schools, school governors and education authorities. Such action will help to cut back the

number of forced marriages, but if there was a specific criminal offence of forcing to marry, we would start to have a real impact on the perpetrators of these terrible acts, who would realise that they were committing an offence not only against every aspect of Islam, but against our criminal law. I hope that the Minister will tell us that progress is being made and that, eventually, we will have some form of criminal law that will deter such parents—who, I stress, are in a minority.

Week after week in my constituency I help young men and women who are very pleased with their arranged, genuine marriages and want to bring their husband or wife into the country; my office and I give them that help. However, a minority of young men and women—nearly always women; men seem to have their own way around these problems—are being forced into marriages. We must win the hearts and minds of those people. To say that forcing another into marriage is a specific criminal offence would go a long way in that direction.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am very pleased that the hon. Lady and other Government Members have tabled this group of probing amendments. It is important that we use the course of the Bill to hear the Minister's views on the subject. The hon. Lady is a well known champion on the subject, and although I am in danger of repeating myself, let me say that I take my hat off to her for what she has done for her community. I think that it is much appreciated.

I first came across the phenomenon of forced marriage in my constituency. A teacher approached me because she did not know what to do about some young women in her class who were going to be taken back to Pakistan to make marriages that they did not want to make. She came to ask if she could bring them to see me separately and in secret. I thought that that was an extraordinary way to behave, but when I saw them and spoke to them I understood the fear and trepidation in which they were living. It was not so much that they wanted me to do anything about their particular cases, but that they wanted me to learn from their experience and to reinforce on the Government—of whatever persuasion—their message that they cannot resist what is going on in their communities unless they have the backing of the Government of the day and some form of legislative protection behind which they can seek refuge.

Following the conference in The Hague last month, I was amazed when Scotland Yard's head of homicide, Commander Andy Baker, revealed that the police in London are approached by an average of two women or girls a week who fear being forced into marriage against their will. I think that that is the tip of the iceberg, and if that is what is happening in London, there will be many more cases in our communities throughout the United Kingdom. There is an urgent need for the Government to examine the issue of forced marriages and to go beyond paying the lip service to the problem that we all pay. Hopefully, they will come up with proposals that, at the very least, can be discussed.

Turning to honour killings, many cultures place emphasis on so-called honour, but precisely what

constitutes honour is quite unclear in many instances. In addition, the concept seems to be entirely differently applied to men and to women. It seems to place men ahead of women, put men in a position of strength and allow them to behave almost as they choose, yet women's behaviour is severely restricted to the point of illogicality. The concept of loss of honour varies from the loss of virginity before marriage to the ridiculous idea prevalent in certain societies that if a woman is raped, that is interpreted as promiscuity and she faces a penalty through no fault of her own: the victim is held responsible. Such is the nature of honour within certain cultures that hit men and women are sent out to deal with offenders. It is very dramatic, and we often read about the results in our newspapers. Reading some of the harrowing stories and seeing the results of so-called honour is alarming. There is a view that only Muslim families are involved, but, in fact, Sikh and Hindu families are as well. Sadly, the practice is widespread.

I will be very interested to hear what the Minister has to say. I refer him to an article in Jane's Police Review of 18 June this year in which Dr. Aisha Gill made an interesting case. At the end of the article, Dr. Gill set out a series of suggestions that I hope the Minister will consider. The first is,

''effective legislation to punish all crimes committed in the name of honour and ensure that all reports of violence and abuse are taken seriously, with action taken''.

I support the amendments. I will be interested to hear what resources the Minister intends to put into the field and his reaction to the substantial research being done by Scotland Yard and others. What action do the Government intend to take?

Ann Keen (Labour, Brentford and Isleworth)

I support the amendments. The purpose of an offence of aiding, abetting or coercing a forced marriage is not in any way to denigrate Asian communities, but to support them in their aim to save and protect their most vulnerable members—boys and girls—from being forced into marriage. There may be few prosecutions under such a provision, but, like the recently passed Female Genital Mutilation Act 2003, it sends a clear message about society's repugnance and determination to stamp out a form of abuse. In addition, the police, schools, the Foreign Office, social services and so forth will feel that they have much stronger grounds for intervening to prevent the offence and aid the victims, and they will have a much stronger duty to intervene and offer services.

Many families still do not realise that what they are doing is wrong, especially when they exert intense psychological, as distinct from physical, force. The amendment would leave them in no doubt that in this country such practices are illegal. All the religions practised by Asian communities in the UK, in particular Islam, condemn forced marriages. Shaykh Hamza Yusuf Hanson, the leading international Islamic scholar recently took part in a film for young people made by the Home Office in which he makes it clear that forced marriage is abhorrent to Islam and Muslims. Such a provision is therefore far from a manifestation of Islamaphobia; in fact, it upholds the

true doctrines of Islam and the Sikh and Hindu religions.

It could be said that current criminal provisions have plainly failed to reduce the abuse because they do not cover coercion by psychological pressure. Drafting a provision will not be easy, but it is far from impossible. Perhaps it will be difficult to prove the offence—especially if it a question of the victim's word against the family's—but the same difficulty is faced by many rape and sexual abuse victims and it does not prevent many successful prosecutions.

The proposed provision has received total backing from the Association of Chief Police Officers through the domestic violence lead taken by Jim Gamble. The chief constable of Manchester, Mike Todd, spoke out strongly in its favour on 18 June this year, when he described it as a very useful and necessary tool in

''the Police armoury to combat this from of abuse''.

I have taken part in many conferences on this subject, and was privileged to host one in my constituency last year, which my hon. Friend the Member for Keighley (Mrs. Cryer) attended. I met District Judge Marilyn Mornington, who with many in the northern circuit, of which she is a member, has worked extremely hard on this issue. Many other brave women have spoken out, not only Southall Black Sisters, but other members of our communities.

The Government should not be afraid of introducing the provision. We as politicians have never been afraid of doing what is right. This is without question the time to do what is right for the young people in our communities.

Vera Baird (Labour, Redcar)

I pay tribute to my hon. Friend the Member for Keighley for the single-mindedness and selflessness with which she pursues these issues on behalf of her Asian community. I suspect that some elements of that community, which dominates her constituency, do not always thank her for doing so, but she continues none the less, and she daily impresses me with her commitment.

I also pay tribute to my hon. Friend the Member for Brentford and Isleworth (Ann Keen). I have had the privilege of being in meetings with her in recent weeks, so I know that she is closely involved with the Asian women's community and its specific problems in her constituency. She, too, is a doughty fighter for its rights.

On no possible basis of cultural tolerance can the kind of behaviour that has been described be allowed. We are almost at the same stage now with honour killing and forced marriage as we were some years ago with domestic violence, when it was almost a secret and was talked about only by very brave people. When the debate about domestic violence started and we began to tackle the issue, it was only whispered about. That was when it was at its worst.

There is an urgent need for these crimes to be named and identified, and it should be made very clear

in the legislation that they are unacceptable. I invite the Minister to respond as positively as he can.

Paul Goggins (Labour, Wythenshawe and Sale East)

I pay tribute to my hon. Friend the Member for Keighley. She described the work that she has done in the Council of Europe, and we know of her work in this place and admire her for it. These are difficult and complex issues, and she approaches them with characteristic sympathy and courage. I think that all of us would unite in paying tribute to her.

I made it clear on Second Reading that the Government are sympathetic to the thinking behind new clause 40. We recognise that it is driven by a sense of urgency about the problem, a desire to raise awareness and to get the public to acknowledge that it is important, and a wish to send a clear signal of condemnation.

My hon. and learned Friend the Member for Redcar (Vera Baird) and my hon. Friend the Member for Brentford and Isleworth are right that there can be no justification for forced marriages, and I agree that if we can take further steps in the Bill to achieve the goals that we all share, we should take them.

I am grateful to my hon. Friend the Member for Keighley for tabling her amendments, which have helped the Committee to focus its attention on this issue. However, what she proposes is not without difficulties. The Government would not generally wish to adopt a measure purely for symbolic reasons. There would have to be real, solid grounds for doing so. I am aware of the Home Office report following the proceedings of the working group on forced marriages that was chaired by Lord Ahmed and Baroness Uddin. It recommended many positive measures, which my hon. Friend welcomed, but it also recommended against the kind of offence that we are discussing. We must at least take account of such opinions.

The amendment raises a number of important and complex questions. Can some of the psychological and emotional pressure that is used in certain cases be criminalised without stepping over the borderline into normal family interactions, which the state should hesitate to seek to regulate? Might the fact that an offence has been committed for the purpose of bringing about a forced marriage be treated as an aggravating factor that the court should take into account when sentencing?

We will need to think very carefully about all such questions, which is why I will ask my hon. Friend to agree to seek leave to withdraw her amendment, which she has already indicated is a probing amendment. If we decide in the end that a specific offence is required, we will almost certainly need to engage in a formal public consultation on the matter, since such action was not proposed in ''Safety and Justice''. It is only right that we engage the opinions of local communities and others on this issue. In the meantime, I hope that she is reassured that the Government take forced marriage seriously.

I was grateful for my hon. Friend's positive comments about the action that the Government are already taking. For example, the Government have published extensive guidance for the police and social services. It has been suggested that that guidance should be backed by section 7 of the Local Authority Social Services Act 1970. I understand that my right hon. Friend the Minister for Children is looking sympathetically at that proposal. The ACPO working group on forced marriage has been playing an important, constructive role. Indeed, we have heard this morning about some of the work that it has been doing.

A UK-wide working group on forced marriages has been established to bring together voluntary and local agencies throughout the UK to improve grass-roots services to victims and potential victims of forced marriage by working with the police and the Home Office. The Government have also funded a range of educational initiatives, including a training programme at Tower Hamlets college to influence attitudes and practice on forced marriage and, rather imaginatively, a teenage soap opera addressing domestic violence and forced marriage, which will be distributed free to every secondary school.

New clause 41 deals with so-called honour crimes. Like all Committee members, I welcome the initiative by the European police meeting in The Hague to consider ways to tackle the rising phenomenon of honour killings. I support its aim to set up a pan-European unit to combat such killings. I also welcome the move by the police in England and Wales to reinvestigate more than 100 murders that they suspect could be honour killings.

Although I understand the concerns of my hon. Friend the Member for Keighley, I do not think that her suggestion in the amendment about how to deal with these serious crimes is appropriate, because offenders in honour killings would, in most cases, be subject to the murder sentencing provisions of the Criminal Justice Act 2003, which provides that offenders must receive a life sentence and sets out lists of factors that should be taken into account when setting tariffs for those convicted of murder. The Government considered carefully the range of murder offences committed and how they should be included in the tariff framework that we set up. Honour killings do not appear in that schedule, although we believe that the majority of such killings would be likely to fall into the aggravated sentencing ranges.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is touching on the nub of the issue. It is difficult to see why this category cannot be included, now that it has been highlighted. Although I accept that it may fall within the ''aggravated'' range, I point out that Parliament could choose to make it specific not by introducing this amendment, but by the device that he has mentioned.

Paul Goggins (Labour, Wythenshawe and Sale East)

As I said, we are thinking carefully about all the issues, but we do not believe that honour killings should be described in that way and included in the list. The aggravating factors, which are already covered, would capture these horrendous killings, which are often carried out by family members and

are generally premeditated. Some of them may be contract killings, and there may sometimes be an abuse of a position of trust. Those are all strong aggravating factors in the legislation that can play into the sentencing for a murder.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I understood from the reports that I read that the national review dealt with nearly 120 murders, of which 13 were identified as being so-called honour killings. Can the Minister say what lessons were learned from that review and how the information from it will be shared with other police forces? Those are not isolated cases.

I was pleased to hear that an innovative play would be sent to all secondary schools, but what about the lessons learned from the pilot project? Will that project be spun out across the country? Are there plans to expand it or are there any pointers from it whereby we can learn across the board?

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Lady is right that we are learning a great deal, and it will be necessary to spread that learning across police forces throughout the country in a relevant and sensitive way.

One particular point that we need to think a bit harder about—I am responding partly to my hon. Friend the Member for Keighley in dealing with it—is how the police are able to identify that a killing is a so-called honour killing if we do not have a specific category of honour killings. How could the police deduce from the list of the aggravating factors that a murder was indeed an honour killing? If they are looking for a pattern of offending and trying to get behind what is going on in order to identify the perpetrators and deal not only with an individual case, but with the whole trend of honour killings, they will need to have some way of identifying precisely what is going on.

I undertake to have discussions before Report with law enforcement agencies to see how precisely they are able to inform their policing arrangements from what is said at trial and in relation to sentencing, so as to detect further crimes in the future. I know that my hon. Friend is interested in that issue, and I undertake to come back to her on it.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Will the Minister examine cases in which the deaths were previously thought to be accidental? I gather that they have been included in the review. That might be extremely informative for other police forces and I would be interested in his reaction.

Paul Goggins (Labour, Wythenshawe and Sale East)

We need to look with fresh eyes at all cases that may have been misinterpreted in the past. We need to learn from such cases and spread what we learn throughout the country. As my hon. Friend the Member for Keighley made clear, this is an issue that is deep within communities, but which has only recently surfaced, so there must be a great deal that we can learn. We need to learn quickly and use those lessons practically to bear down on what is a completely unacceptable practice.

I have not had the opportunity to read in detail the article to which the hon. Member for Chesham and Amersham (Mrs. Gillan) referred. I shall do so,

because it clearly contains much important information. We all have a lot to learn about these matters. I undertake to engage with law enforcement agencies between now and Report to find out precisely where they have got to and what further help they need.

I hope that, having described the Government's response to both amendments, my hon. Friend the Member for Keighley will agree to seek leave to withdraw the amendment on the clear understanding that we intend to take forward the issue of enforced marriage in the best way that we can.

Ann Cryer (Labour, Keighley)

I shall seek to withdraw my amendment, but before I do so, I shall draw together one or two strands that came out of our discussions.

I understood from the comments made by the hon. Member for Chesham and Amersham about the outcomes of the police officers' conference that the 120 killings to which she referred are going to be investigated. I do not think that we know what proportion are honour killings, but we are moving in the right direction in that the police are going to look at those deaths and also at the totally disproportionate number of young women in the Asian community who commit so-called suicide as compared with the number in the white community, as it is four times as great. In addition to accidents, there are suicides. I cannot believe that all those women died because of their own actions. I am certain that many of them took their own lives because of the pressure from their extended family and the community. All that pressure comes from family honour or izzat, which plays such a strong role in those communities. It is difficult for us on the outside to understand what pressures are brought to bear on these girls to make them take their own lives.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I based my information, probably unwisely, on an article featured in the Evening Standard on 23 June. It said that, of the 120 deaths that the police had so far identified, 13 were suspected cases. If I am incorrect, it is because the information that I got from the newspaper was incorrect. I hoped that it was right.

Ann Cryer (Labour, Keighley)

As a well meaning reader of The Guardian, I think that the Evening Standard probably got it right in that there were 120 deaths throughout the country. Many of them occurred in the Met area, but there were also cases from throughout the country.

On the point made by my hon. Friend the Member for Brentford and Isleworth, when the Department for Constitutional Affairs was the Lord Chancellor's Department, the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Shipley (Mr. Leslie), held a range of meetings across the country, particularly in areas where there are ethnic communities. Certainly, a meeting was arranged in Brentford and in Bradford. That is where I came across the formidable District Judge Marilyn Mornington. It was she who had the idea of creating a criminal offence. She comes across many problems relating to the issue and she felt that the creation of a

specific criminal offence would be a step in the right direction.

Of course we have to consult the communities, but let us talk to women, too, and not just to so-called community leaders. I remember a time in Bradford when if the local authority was asked to consult the community, it meant a particular council official picking up the phone and ringing five named persons in the Pakistani community. That was consultation. We do not want to go down that path. The meetings that the Lord Chancellor's Department organised were excellent. People from all over the country were there, and I met a group of women from Sahela in Cardiff who had some good information.

Shortly after the report of the group looking into forced marriages was published, the Foreign and Commonwealth Office set up the FCO community liaison unit with the help of the Home Office. There, a group of people—mainly women—have a hotline for girls in difficulties who either are about to be, or have been, forced to marry. It does some wonderful work. With the combined help of the FCO community liaison unit, our high commissions, MPs who help girls individually, social services, and, in particular, police forces, such as West Yorkshire police, we are moving in the right direction, but what we are not doing is stopping the practice; it is continuing apace. We are simply helping girls in awful situations, but once a girl has been forced into a marriage, her life is in tatters, no matter what we as a society do to help her. For the rest of her life, she is practically cut off from her community and family. Frequently, she even banned from seeing her brothers and sisters.

I readily withdraw my amendment, but I hope that the Minister will take into account everything that has been said this morning, particularly about consultation with the community. We must remember that there are women out there who are suffering, so we must listen to what they have to say. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7, as amended, agreed to.

Schedule 8 - Repeals

Schedule 9 - Transitional and transitory provisions

Clause 37 - Orders

Clause 38 - Extent

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 81, in clause 38, page 20, line 18, at end insert—

'(1A) Section [Recovery of criminal injuries compensation from offenders] also extends to Scotland.'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: Government new clause 28—Recovery of criminal injuries compensation from offenders.

Government amendments Nos. 127 and 128.

Paul Goggins (Labour, Wythenshawe and Sale East)

The aim of the new clause is to arm the Criminal Injuries Compensation Authority with powers to recover from offenders the money that it has paid in compensation to their victims under the criminal injuries compensation scheme. The new clause would do that by inserting four new sections into the Criminal Injuries Compensation Act 1995, which paved the way to the introduction in 1996 of the present, tariff-based compensation scheme.

The proposal to give the CICA a right to recover money from offenders was one of several set out in the consultation paper ''Compensation and Support for Victims of Crime'', which was issued on 12 January this year. More than 30 respondents commented on the proposal, the overwhelming majority in favour of it. In the light of that strong support, we decided to give effect to the proposal as soon as possible. We aim to make offenders liable to reimburse the CICA for any money paid out to their victims, and the CICA would be able to pursue the offenders through the civil courts for that money.

I will summarise briefly the proposed arrangements. New sections 7A to 7D would be inserted after section 7 of the 1995 Act. They set out that

''The Secretary of State may, by regulations . . . make provision for the recovery of . . . an amount''

from an offender

''equal to all or part of the compensation paid''

to a victim

''in respect of a criminal injury.''

They make it clear that recovery would be possible only when the offender had been convicted of the relevant offence in a criminal court. Such a conviction would establish that the offender was indeed guilty of the offence that led to the victim's injury, which would obviate the need for the CICA to establish guilt in the civil courts.

The proposed arrangements would require the CICA to serve a recovery notice on the offender which would set out: first, the amount of liability; secondly, the reasons for the determination and the basis on which it has been made; thirdly, how the money must be repaid; and fourthly, how the alleged offender can object, if he contests either the amount recoverable or that he is the person from whom it should be recovered.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister make it clear that there is no possibility of an award of compensation to a victim being

contingent on recovery of that sum from the perpetrator?

Paul Goggins (Labour, Wythenshawe and Sale East)

I can give an absolute assurance. The CICA would make the payment; then, separately, it would be able to use the new powers to recover the money from the offender. However, the one would not be contingent on the other.

The information that I have just outlined would have to be contained in the notice. That is an important safeguard for an offender. If an offender objects, the arrangements provide that the CICA must formally to review that objection and that that review must be conducted by a person other than the one who took the original decision to issue a recovery notice; that is another important safeguard. If the offender's objection is unsuccessful, or if no objection is lodged, the CICA can then initiate recovery action through the civil courts. In practice, that means that it will seek to recover the money by normal debt recovery action.

Dominic Grieve (Conservative, Beaconsfield)

I am trying to follow the Minister's comment about people contesting whether they are the right person to pay the sum. One would have thought that, if someone has been convicted of an offence of violence against another, such a contest would be pointless. In what circumstances do the Government envisage an alleged offender contesting whether the order should be made against him?

Paul Goggins (Labour, Wythenshawe and Sale East)

I wish to reflect a little on the detail of that but, for example, there may be complications because somebody of the same name has been convicted in court, or two people in the same family might have the same name. That could create confusion, and in those circumstances the person who is not the person from whom compensation should be sought will be able to defend themselves.

Dominic Grieve (Conservative, Beaconsfield)

That is an extremely helpful answer, but I want to take this a stage further. It is my understanding that the Minister envisages that in those circumstances a review will be carried out in-house by the Criminal Injuries Compensation Authority, but what if that review still gets the decision wrong? Where does the person concerned get redress under the proposed system if he believes that he is wrongly being required to pay a sum of money?

Paul Goggins (Labour, Wythenshawe and Sale East)

In the civil court. There is an internal arrangement and common sense may well prevail, but if there is a contest that will be resolved in the civil court. I should emphasise that the action will give the offender a further opportunity to object on the grounds set out in the Bill. That is another important safeguard.

Vera Baird (Labour, Redcar)

My hon. Friend's last answer has made me think about another situation. If three people are convicted of an offence, will the compensation ordered to be paid to their single victim be apportioned among them, or will each be jointly and severally liable for all of it?

Paul Goggins (Labour, Wythenshawe and Sale East)

Again, I wish to reflect a little on that question. However, the compensation cannot exceed the sum paid out by the criminal injuries compensation

scheme. Therefore, I assume that the full amount that has been paid out is all that can be recovered, and that that would be apportioned between the three parties. However, if my hon. and learned Friend will forgive me, I will not get into a debate now on an issue that I need to reflect on.

David Heath (Liberal Democrat, Somerton and Frome)

That raises another important issue. I do not expect the Minister to answer the question, but where there are co-defendants who are jointly responsible, will the total compensation be apportioned according to an assessment of the contribution of each of them to the injury, or will it simply be apportioned equally between those who are held jointly responsible for the crime? We are getting into complicated areas and we need clear advice about how these things will work.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall provide more precise advice, but the answer clearly depends on the circumstances of the case.

Amendment No. 81 is a consequential amendment to clause 38 to make it clear that new clause 28 extends to Scotland. We will need to make a slight further amendment to the new clause to reflect the fact that the Limitation Act 1980, to which clause 7D(4) of the new clause refers, does not apply in Scotland: the relevant Scottish legislation is the Prescription and Limitation (Scotland) Act 1973, and we need to add an appropriate reference to it. We will make that necessary technical adjustment on Report.

Amendment Nos. 127 and 128 make consequential changes to the long title of the Bill to make it clear that it now includes provision about the recovery by the CICA of compensation from offenders. Those provisions take nothing away from the rights of victims or compromise victims' ability to obtain appropriate redress. A victim will still have the right to sue the person who harmed them for damages through the civil courts. Our intention is to give the CICA a power to get back from offenders the money that it has paid out in compensation to their victims under the compensation scheme. The details of those procedures will be set out in regulations, and they will be updated in the light of experience. All such regulations will require the affirmative resolution.

Any compensation recovered, less the costs of recovery, will go through the Consolidated Fund and back to the CICA, which will then be able to use the money to pay compensation to other victims of violent crime. The money will not be kept in the Treasury. I am sure that the Committee would agree that it is right that, wherever possible, offenders be made to pay for the consequences of their crimes. That being the case, it must also be right for the CICA to be armed with the necessary powers to get compensation back from offenders.

Joe Benton (Labour, Bootle)

Before I call the next speaker, I want to mention something for the Committee to be thinking about before we get to it. Very shortly we will come to a series of new clauses, which I understand the Clerk has discussed with different bodies. I propose to put new clauses 18 and 19 together and to take new clause 20 separately, because I understand that it may be opposed. Then we have to

deal with new clauses 21, 23 to 29 and 35 to 38. New clauses 43 and 44, which are a little further on, will also be taken together. If there is any problem with that suggestion, will hon. Members please let me know during the next couple of debates?

Dominic Grieve (Conservative, Beaconsfield)

Thank you, Mr. Benton.

Let me say at the outset that the principle of what the Minister is seeking to achieve in new clause 28 will command acceptance across the Committee and, indeed, on both sides of the House. Therefore, I hope that he will excuse me if I examine the proposal in a little detail, because good intentions can have unintended consequences when they are translated into statute, and there are one or two issues on which I would like to get clarification.

As the Minister is aware, the proposal has been introduced at a late stage of the Bill's passage, so there has not been the opportunity to consider carefully its implications. I apologise to him if I raise issues to which he knows the answers. Has an assessment been made of the likely financial benefits that will flow from the proposal? We know that a large proportion of offenders—by no means all—come from a category of individuals who lead chaotic lifestyles and have few financial resources. Often, therefore, the chance of recovering any sensible sum will be small, but the resources that have to be put into achieving recovery may be considerable until one ascertains that the person does not have any money that one can lay one's hands on. Has an assessment been made of the cost effectiveness of the proposal? I realise that that might be a difficult thing to do, but one would hope that someone within a Department has done a few forward projections and estimated what the measure will generate. Without that, there is a serious danger that we could end up with a sum recovered that is neutral or negative when balanced against the resources that need to be put into the process of recovery. I would be grateful if the Minister could help me on that.

The Minister said that the money would not be kept in the Treasury, but will the Treasury keep the interest on the money that is acquired, or will the benefit of that also go to the fund in order to build it up? I would be grateful if the Minister told us about that. In my experience, the interest on money held tends to be important, especially when the sums are large. It would be useful for the Committee to know what will happen in that respect.

Some of the nub issues were touched on in interventions. In a straightforward case, if a person had been convicted of bludgeoning another with a piece of wood and was serving a term of imprisonment, but had a car and a house waiting for him on his release, one would expect few problems if action was taken to recover the assessed sum to compensate the victim; but if there are co-defendants, will the liability be joint and several, or joint, so that there has to be apportionment? How will the determination system work?

What happens if a person does not like how the review of a recovery determination has been carried out? The Minister told me that in such cases, there

would be a contest in the civil courts, which surprised me, because if as a result of a review a debt is established as being due and owing from a person as if it were under a civil judgment, the matter of whether it is owed will not subsequently be reviewed by the civil courts. In such circumstances, the only mechanism open to a person would be a judicial review of the recovery determination. Can the Minister clarify that? It is important for the Committee to understand the mechanisms.

On damages from the civil courts, the Minister said that a person would not be prevented by the scheme from seeking damages from the offender concerned under ordinary civil recovery provisions for tort. However, if that person does so, how will it affect the situation in respect of the board? Let us suppose that the compensation scheme has paid £500,000 to a person who has suffered serious, traumatic injuries and been left permanently handicapped. The scheme would recover that money from the offender, but what happens if the person brings civil proceedings against the offender? Will the offender pay out a second time under the civil recovery mechanism, or is something else envisaged? It would be helpful if the Minister clarified that, because it is not clear in the Bill.

Subject to those comments, I welcome the broad principle.

David Heath (Liberal Democrat, Somerton and Frome)

I apologise to the Committee for being late. I was carrying out parliamentary duties in Edinburgh and although I left at quarter-past five this morning, it was insufficiently early to get to the Committee on time.

I have no problem with the principle behind the proposal, but a lot of thought needs to go into the implementation. My principal area of concern has been outlined in interventions and by the hon. Member for Beaconsfield (Mr. Grieve). There is a real problem with the apportionment in cases involving co-defendants who have been found guilty of offences that constitute an assault, for example. The Minister made it clear that the amount sought in compensation could not exceed the amount given to the victim, so we have a quantum of compensation.

Given that it would be manifestly unfair if the compensation were to be recovered from only one co-defendant, there is a need for apportionment, but who is to do that, and on what grounds? Will the authority accept that where several people are jointly responsible for injuries, the compensation sum should be shared out arithmetically, or will there be an attempt to establish who was responsible for a particular kick, or blow to the head, and so on, that caused the injury for which compensation is paid? If the latter, there will be a complex process of arbitration that will almost certainly be challenged, and we will be entering a new area. As I said, although I have no difficulty with the principle, I believe that implementation will be difficult.

I am insufficiently knowledgeable about whether there are criminal offences occasioning compensation through the criminal injuries compensation scheme that could be caused by a corporate body rather than ''a person'', meaning an individual. I am trying to

think of an instance. Many of us have long argued that there should be an offence of corporate manslaughter, but we have not quite got there yet. Should there be provision for bodies corporate, or are they covered by the word ''person'', meaning a legal person? Perhaps the Minister can assist me with that.

The Minister may also be able to tell us whether the Home Office has any intention of amending the terms of the criminal injuries compensation scheme. There is a great deal of concern outside the House that plans are afoot to remove the lower bands from the scheme. Many are extremely concerned about the effect that that will have on victims. It would be a most retrograde step if that were to be combined with this measure in a way that purports to assist the victim, but in fact assists only the Treasury.

Dominic Grieve (Conservative, Beaconsfield)

I refrained from raising that issue, because it was not directly germane to the amendment. However, I, too, would be delighted if the Minister took this opportunity to clear up the matter.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman was much better behaved than I in deciding that the matter was not germane to the amendment. It would be helpful if the Minister was as explicit as possible on the subject. If there are proposals for change, the sooner the House knows about them the better. Many people will be concerned if there are to be retrograde moves, as we suspect there will be.

I look forward to hearing what the Minister says, and acknowledge that he might wish to deal with apportionment in writing and explain more fully on Report. I would entirely accept that, if it were necessary, because we seem to have raised issues that have not yet been thought through—or if they have, the results of that thought have not yet been communicated to the Minister.

Vera Baird (Labour, Redcar)

I, too, welcome the proposal, and have some queries that are closely related to each other.

The criminal injuries compensation scheme has its own internal appellate structures and they are often used for issues of quantum. It can take a considerable time to settle on the appropriate payment to a victim because the authorities have to look at issues such as how long the trauma lasted and the extent of the injury. I have noted that the limitation period does not start until compensation is paid. After that, the state may embark on the job of recovering from the perpetrator the compensation that is to be paid. I heard clearly in the reply given earlier that there is no contingency in terms of getting the amount. I would like reassurance that there is no question of the victim waiting until the action against the perpetrator is triggered and completed to receive her payout, as that could be a long wait.

Another issue, which is closely linked, is the right—proper, I suppose—of the perpetrator to seek a review under proposed new section 7B. Under subsection (2)(e) of that new section, there is provision for review of both the determination that an amount is recoverable, and the amount determined to be recoverable. Therefore, the review can be not just

about whether the person is the right chap, which is all that we thought of under proposed new section 7B(1), but about the amount to be recovered from him. What is that about? Is the provision only about apportionment, so that if there are two sums and the claims officer has said that the person should pay all of it, it can be argued that he should pay only half? Is that what the right to discuss the sum on review is about? I would not want it to be about any reopening of the quantum that the CICA has already decided should be paid out to the victim, because that will have been fixed and settled, and it ought to have been paid out by the time that this stage is reached. It would greatly concern me if, ex post that occurring, the perpetrator were able to bring forward fresh medical evidence to suggest that the victim was not as traumatised as she had suggested, or anything of that kind.

Dominic Grieve (Conservative, Beaconsfield)

Proposed new section 7D(2)(b) refers to the defence

''that the compensation paid was not determined in accordance with the Scheme''.

That raises the possibility of saying that there has been a poor or wrongful determination of the amount. How far that extends is difficult to tell.

Vera Baird (Labour, Redcar)

The hon. Gentleman is echoing my wish that it should be made completely clear that once somebody has got their award it will not be changed by the intervention of the perpetrator, when what is intended is only to recover the award that has been made from him.

Paul Goggins (Labour, Wythenshawe and Sale East)

There have been a number of interesting questions. I compliment the hon. Member for Somerton and Frome (Mr. Heath) on looking remarkably fresh after a 5.15 am start from Edinburgh.

I am grateful to the hon. Member for Beaconsfield for making it plain from the outset that he had no quibble with the principle of the proposal but wanted to raise some issues of detail. That is what Committee is supposed to do. He mentioned again that the proposals were brought forward at a late stage. We have rehearsed the reasons for that on a number of occasions, but it is worth repeating that that was because there was a consultation that began in January and concluded only earlier this summer. We were able to respond to that on Second Reading, and I am pleased that we can use the Bill as an opportunity to advance this set of proposals.

The hon. Gentleman asked about the financial benefit that might accrue from the measure. I assure him that cases will only be pursued where the value of what is recovered exceeds the cost of recovering it—in other words, where there is a net gain from the process. Decisions will sometimes reflect the ability of the individual to pay, and at other times the amount of money that we are seeking to recover. However, nothing is recovered at present; as soon as we implement these procedures, more money will be raised and more money will be made available to the CICA. I also assure the hon. Gentleman that the Treasury will keep neither the money nor the interest

that will be added to the money that is paid into the Consolidated Fund.

The hon. Gentleman and others raised a number of questions about the civil courts. An offender will be able to raise the defences set out in proposed new section 7D in enforcement proceedings in the county court or the sheriff court. He can contest on the grounds that he has not been convicted of the offence,

''(b) that the compensation paid was not determined in accordance with the Scheme; or

(c) that the amount determined as recoverable from him was not determined in accordance with regulations under section 7A.''

I say to my hon. and learned Friend the Member for Redcar that there could be a challenge to the amount that has been determined on the grounds of apportionment, as in the example that she gave, or the argument could simply be that the figures are wrong. However, I give her an absolute assurance that that could not lead to a reopening of the question of quantum—in other words, to a reopening of the case. That cannot happen. All we are talking about is the CICA being able to recover money after it has paid out a sum as an award. It will be possible for the offender to challenge things through the civil courts in the way that we are setting out, but it will not be possible for the original case to be reopened.

Dominic Grieve (Conservative, Beaconsfield)

I have another question for the Minister. The answer must be obvious, but it is not made obvious in the provisions. What will happen where someone is convicted of an offence, several tens of thousands of pounds in compensation is paid to the victim, the sum is recovered from the convicted person, and three years later the Court of Appeal overturns his conviction? I assume that at that point he will get his money back, but the clause does not make provision for that. Although that might not happen very often, we can say with certainty that it will happen at some point.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman makes an interesting point that I shall have to think about further. It appears to be logical that where someone's conviction is overturned the amount that has been recovered should be paid back, but I shall check that and write to the hon. Gentleman. If he has put his finger on a difficult issue, he will see on Report that we have taken account of his point.

Just to finish my remarks on the civil courts, an offender will be able to challenge the CICA's assessment before a tribunal with full jurisdiction, as is required by article 6 of the European convention on human rights.

On the apportionment question, I emphasise again that that will depend on the specific case being dealt with. However, I repeat that the amount claimed back cannot exceed the amount that has been paid out as an award. For example, where £1,000 compensation has been to the victim, and the award is of £2,000, the CICA will claim the difference between the two: £1,000. It will not be possible to exceed the full amount. I am happy to write to hon. Members in a little more detail about apportionment if that would be helpful. My hon. and learned Friend the Member for

Redcar is clearly concerned that the victim could lose out because of the additional step in the process, but I emphasise that it is a further step beyond the existing system. These proposals will not in any way delay the process by which the victim is paid out an award. That will not change as a result of these measures, all of which will come in after the process as it stands at the moment.

The hon. Member for Somerton and Frome mentioned corporate responsibility. As an example, if a care home is responsible for an injury through lack of care, the CICA could effect recovery from that care home. Corporate accountability is built in to the measures.

The hon. Members for Somerton and Frome and for Beaconsfield mentioned the criminal injuries compensation scheme. I emphasise that nothing in today's proposals has a bearing on the scheme as a whole. They are entirely additional. Of course, the Government keep the scheme under review, and if there were at any stage proposals to change it, the House would be notified in the normal way and we would have the normal debates, because change in regulation would be required. That can be done only in the House.

Dominic Grieve (Conservative, Beaconsfield)

At one point I was distracted from the Minister's remarks, so I may have missed what he said, but I asked for clarification of the relationship between the compensation scheme and civil proceedings. How will that work in respect of double recovery from a defendant of money through the scheme and money through civil proceedings? Did he answer my question on that? If he did so, I missed it and I apologise.

Paul Goggins (Labour, Wythenshawe and Sale East)

I may not have dealt with the point in sufficient detail. I shall write to the hon. Gentleman about that issue, but for the purposes of this debate, I emphasise that there cannot be double payment or counting. There can be only the one figure, and I emphasise very strongly that it cannot be paid twice. That is very important.

I repeat that if any changes were made or proposed to the scheme, they would be brought forward in the normal way. We are certainly not introducing anything to change the scheme this morning. It is worth bearing in mind that in the current year, the CICA will have about £163 million at its disposal to pay out in awards. That figure will be added to by the measures that we are proposing.

Amendment agreed to.

Amendments made: No. 83, in clause 38, page 20, line 28, at end insert—

'section [Victims of mentally disordered persons: Northern Ireland].'.

No. 58, in clause 38, page 20, line 28, at end insert—

'section (Procedure for determining fitness to be tried: Northern Ireland).'.

No. 105, in clause 38, page 20, line 32, after 'Schedule', insert

'(Unfitness to stand trial and insanity: courts-martial etc),'.

No. 59, in clause 38, page 20, leave out lines 34 and 35.—[Paul Goggins.]

Clause 38, as amended, ordered to stand part of the Bill.

Clause 39 - Short title

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 60, in clause 39, page 20, line 38, leave out subsection (2).

This is a technical amendment to remove the Lords privilege amendment to clause 39 that was inserted when the Bill moved from the Lords to the Commons. Committee members are aware that the House of Lords cannot consider matters of money and charges on the public funds. Therefore, this amendment was inserted. Following Second Reading, this House passed a money resolution for the Bill.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

In another place on 4 March, my noble Friend Baroness Anelay of St. Johns complained that amendments had been tabled at the last minute and that the other place did not have enough time to consider them properly. Likewise, on 1 July, I raised a point of order that was ruled on by the Chair.

I want to use this Government amendment to ask the Minister whether he has had a chance to consider the major amendments that have been added to the Bill, and whether he will accept a recommittal in the other place to allow the Lords to consider the new amendments properly.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am pleased to respond. The question of recommittal is not for me; as the hon. Lady is aware, these issues are discussed in the usual channels.

We are content that, although some of the amendments came a little late in the day, the reasons why are clear. There has been straightforward agreement about the principle, and we have already tried this morning to get to grips with some of the detail. That can continue in the period up to Report. I do not think that anybody can argue that there is insufficient opportunity to discuss the detail. The question of recommittal is a matter for others.

Amendment agreed to.

Clause 39, as amended, ordered to stand part of the Bill.

New clause 18 - Evidence and procedure: England and Wales

New clause 19 - Evidence and procedure: Northern Ireland

New clause 20 - Procedure for determining fitness to plead: England and Wales

New clause 21 - Procedure for determining fitness to be tried: Northern Ireland

New clause 23 - Victims of persons sentenced to imprisonment or detention

New clause 24 - Victims of persons subject to hospital order with restriction order

New clause 25 - Victims of persons subject to hospital direction and limitation direction

New clause 26 - Victims of persons subject to transfer direction and restriction direction

New clause 27 - Representations and information: interpretation

New clause 28 - Recovery of criminal injuries compensation

New clause 29 - Victims of mentally disordered persons: Northern Ireland

New clause 35 - Surcharge payable on conviction

New clause 36 - Increase in maximum on-the-spot penalty for disorderly behaviour

New clause 37 - Higher fixed penalty for repeated road traffic offences

New clause 38 - Courts-martial etc

New clause 42 - Powers of authorised officers executing warrants

Chris Leslie (Labour, Shipley)

I beg to move, That the clause be read a Second time.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Government new clause 43—Disclosure orders for purpose of executing warrants.

Government new clause 44—Procedure on breach of community penalty etc.

Government new schedule 2—Powers of authorised officers executing warrants.

Government new schedule 3—Procedure on breach of community penalty etc.

Government amendments Nos. 125 and 126.

Chris Leslie (Labour, Shipley)

I regret that it was not possible to table these amendments and new clauses earlier. In the event, we have had longer—about a week—to consider the details. The reason why they were delayed was that we saw an opportunity to make what I regard as vital changes to the law. As I explain the nature and contents of the amendments, I hope that it will become clear that they are an important addition to the arsenal available to the court to ensure that sentences for criminal offences are enforced correctly. That is their primary purpose. In ensuring the effectiveness of the criminal justice system, it is the Government's top priority to make greater use of fines and to enforce those fines once they are imposed.

Significant progress is being made in improving the enforcement regimes, but some individuals clearly remain who will persistently try to evade the system and default a court sentence. We need to ensure that we are capable of effective enforcement at all times. I would like to emphasise that the amendments will not apply to bailiffs working for the civil court.

Sylvia Hermon (UUP, North Down)

Will the Minister explain why the Irish Government are

prepared to pay the fines of Irish nationals serving jail sentences in Columbia? Have the British Government made any approaches to the Irish Government in respect of the fines of Irish nationals who commit offences and do not pay their fines in this country?

Chris Leslie (Labour, Shipley)

I do not have a ready answer for that question, not least because we are not talking about those jurisdictions now. Perhaps it will be useful if I speak to my colleagues in the Northern Ireland Office to see whether they have any thoughts or comments about that issue. We are talking today about the enforcement of criminal penalties imposed in courts in England and Wales, and it is important that we focus on that.

New clause 42 would bring into effect the proposed new schedule 4A, which would give civilian enforcement officers and approved enforcement agencies the additional powers that they need to help to improve the enforcement of fines and community penalty breach warrants. New schedule 2 would provide the civilian enforcement officers and approved enforcement agencies, which are employed by magistrates courts, with several new powers to help them enforce fines and penalties.

First, the amendments give enforcement officers engaged by the magistrates courts the power to enter premises to execute a warrant of arrest, commitment, detention or distress where the officer has a reasonable suspicion that the offender who is a subject of warrant is present. Secondly, they give the persons engaged by the court the power to search offenders for dangerous articles such as hypodermic needles, knives and items that the offender may use to facilitate an escape from lawful custody. The provisions also give them the power to use reasonable force in exercising the other powers that are listed.

Sylvia Hermon (UUP, North Down)

Will the Minister explain what training the new civilian enforcement officers will have on human rights obligations and PACE?

Chris Leslie (Labour, Shipley)

I shall deal with some of those issues in a moment.

In many cases, enforcement officers have been working with the police for some time to ensure that they have the opportunity to enforce warrants, but the police have been engaged in some of the more difficult operations. We want to ensure that our training arrangements for enforcement officers cover all the new powers that we make available to them. However, it is also important to recognise the professionalism that already exists in the enforcement profession and the fact that those staff are sometimes frustrated that they may be under threat, but are currently unable to adequately able to cope with the situation, because they have no powers of search.

There are currently no powers to enter premises to enforce warrants. One result is that is that only about 30 per cent. of distress warrants and 36 per cent. of community penalty breach warrants are executed successfully. The provisions will allow civilian enforcement officers and agencies to enforce warrants more effectively by allowing them to execute warrants against offenders who refuse to

open their doors when it is clear to the authorised officer that they are present.

Civilian enforcement officers frequently take offenders into custody and transport them to court, but they have no powers to search offenders for articles that may cause themselves or others harm, or that help them to escape from lawful custody, even if they believe that an offender has such items. Enforcement officers often find dangerous items discarded in their vehicles or hidden in places that could cause harm. I have spoken to enforcement officers who have found hypodermic needles hidden between car seats, yet they are using their vehicles regularly to take persons to and from court. That presents obvious health and safety concerns for those officers and other offenders who may use be using the same vehicles.

The powers will provide enforcement officers with much-needed health and safety protection in carrying out their duties. In parallel, it is important that we develop a training programme for staff and make sure that they are given sufficient guidance in respect of their employment arrangements. That is critical to the enforcement process and the use of these primary legislative powers.

The powers are necessary not only to minimise risk to the offender, but to ensure that fines can be enforced effectively. The legal advice that I have received is that the new powers are already available to police officers executing warrants of arrest and commitment under the Police and Criminal Evidence Act 1984. The extension of the powers to civil enforcement officers and approved enforcement agencies will therefore not give rise to any questions of compatibility with the European convention on human rights.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is describing the measures as vital and urgent. If they are so vital and urgent, why were they not included in either the Courts Act 2003 or the Criminal Justice Act 2003, which we discussed only nine months ago and which covered this ground? How have circumstances changed since then to make the measures vital and urgent now, although they were not nine months ago?

Chris Leslie (Labour, Shipley)

It may well have been that the measures were urgent nine months ago. I have had my current portfolio for about 12 months, and it became clear to me in the course of conversations with enforcement officers across the country that they would appreciate some clarity about their powers. They will appreciate the assurance that they have the scope to deal with circumstances such as the finding of dangerous articles on the person whom they are charged with arresting and taking into custody. I recommend to any hon. Member that they speak to their magistrates court committee and see at first hand the job that enforcement officers have to do. It is a very difficult job that is sometimes undertaken in very difficult circumstances.

I have been with officers on the doorstep and accompanied them in the course of their job, and I was astonished that they did not have some of these powers. I felt that it was important to make sure that

we introduced them into legislation at the next available opportunity, which was this Bill.

Sylvia Hermon (UUP, North Down)

As civilian enforcement officers will have increased police powers, can the Minister say whether, if such an officer happens to get something wrong when detaining someone or entering a house, a complaint will lie against them and go to the Independent Police Complaints Commission?

Chris Leslie (Labour, Shipley)

Clearly, the current complaints process involves the court itself. Magistrates courts have arrangements for complainants and those brought into custody so that they may hear complaints about the operation of enforcement officers. Such officers are responsible to the court, so complaints go to the courts. Perhaps it would be of interest to the hon. Lady and to other Committee members if I sent out details of the current complaints process for court enforcement staff. However, we do not propose to change the current arrangements.

Dominic Grieve (Conservative, Beaconsfield)

The Minister said that he does not intend to change the complaints procedure, but we are greatly widening the powers given to court enforcement officers. Is he satisfied that the current complaints procedure is adequate, given the sort of complaints that might be made in view of the extension of powers?

Chris Leslie (Labour, Shipley)

I am satisfied that the arrangements are sufficient. Moreover, there are consequences for anyone straying beyond the powers permitted in legislation, even if they are working for a public authority. The normal process for redress through the courts is available to any individual who feels aggrieved in respect of such persons.

Dominic Grieve (Conservative, Beaconsfield)

The Minister might not be following my point. At the moment, the police have an extremely good complaints procedure: it is often informal and it brings to their attention areas where the exercise of their powers, even if legitimate, is causing irritation or annoyance or is reducing their standing in the eyes of the public. I am not aware of such a procedure for enforcement officers, yet, the Minister is creating a system—with which I do not necessarily disagree—in which precisely such irritation and annoyance are likely to arise as they do with the police and I am not satisfied that there is a complaints procedure that addresses that. The Minister might be able to reassure me—I do not know.

Chris Leslie (Labour, Shipley)

I hope to be able to reassure the hon. Gentleman. True, there is not the same complaints process as for the police, but court enforcement officers deal with a different range of persons: those convicted of criminal offences. If such officers stray beyond their legal powers, the offender may have redress, depending on the nature of the extension of powers. That provision is sufficient. I do not have evidence of a problem and I do not anticipate a need for complicated or bureaucratic complaints arrangements in addition to the present adequate ones in order to cope with any scenarios that might arise.

The time has come to shift the balance so that there are powers for enforcement officers, who are often frustrated in the course of their work because of the narrow scope of their legal powers. The proposed modest changes will not add unnecessarily to complaints from offenders.

Dominic Grieve (Conservative, Beaconsfield)

To take one example, one of the powers that we are creating—I am not saying that it is a bad power—will enable the enforcement officer to enter the house of a wholly innocent third party in the belief that the person whom he wishes to apprehend is there. That is akin to a police power but is exercised for the specific purpose of fine enforcement, and that could give rise to problems. I am not satisfied that there is an informal complaints procedure, let alone a formal one, for court enforcement officers as there is for the police. If they are to be given the same powers, there ought to be a similar complaints procedure to that for the police.

Chris Leslie (Labour, Shipley)

I do not believe that such a complaints procedure is necessary. For example, if a civilian enforcement officer broke down a door when it was not necessary to do so and went beyond the reasonable procedure in the new schedules and new clauses, he would be committing an offence of criminal damage and could be sued by the householder for trespass to goods. Moreover, if an officer used more force than was reasonably necessary while carrying out a search of an offender, he might be guilty of an offence of common assault. Such provisions are sufficient to deter enforcement officers from straying beyond their powers. Given that we do not envisage those situations arising, it is not necessary to have a complicated, convoluted complaints process. However, it is important that enforcement officers have reasonable powers to do their job effectively and enforce the will of the court. After all, we are talking about people who have been found guilty of criminal offences and against whom a sentence has been imposed but not complied with, perhaps because of default, which might be wilful. It is important that we extend the powers.

Vera Baird (Labour, Redcar)

My intervention is less about the complaints process than about getting clear in my mind the scale of the powers involved. As I understand the example given by the hon. Member for Beaconsfield, we will be giving power to an enforcement officer to break down the door of a third party who has nothing to do with the case in order to serve a warrant on someone for a £40 fine.

Chris Leslie (Labour, Shipley)

The crux of the matter lies in the phrasing used in the new clause and new schedule: the power must be exercised in a reasonable manner. I emphasise that we would give enforcement officers extra flexibility to enforce criminal penalties, not civil penalties such as non-payment of bills and so forth. In such circumstances, it is necessary for the will of the court to be upheld by enforcement officers. Frequently—in 6 to 7 per cent. of enforcement attempts—officers go to a house, see an individual through the net curtains and are frustrated and unable to enforce the court order. In such circumstances, it is necessary that they have the scope to act.

Enforcement officers are professionals and they would use the powers reasonably. Under the Bill, they would only be sanctioned to use the powers reasonably—that is the safeguard that we want to put into the Bill. The time has come to make sure that when a court imposes a penalty, it is capable of being enforced.

David Heath (Liberal Democrat, Somerton and Frome)

I was just considering the person who is so frustrated at waiting outside a window and not being able to do anything about it. Why on earth would he not fetch a constable in the traditional way? As I understand it, there is no rank structure among civilian enforcement officers. When we give powers to police officers, we often require an officer of a particular rank to authorise an action. Under the powers being discussed, there is no question of involving a senior authorised officer of any kind. Someone who had just been employed by one of the agencies offering such services could take the decision on what constituted reasonable grounds for breaking down the door of the third party to gain entry to premises where he supposed somebody else might be.

Chris Leslie (Labour, Shipley)

I do not believe that the circumstances set out in the Bill would allow for unreasonable activities. There are those safeguards; if the officers are unreasonable, they will be committing an offence. Also, it is important to recognise that it is the job of the police to catch those whom they suspect are engaged in criminal activity; the police are not wholly involved in the enforcement of court sentences. If the police were consistently diverted to enforcement activities in a way that detracted from their primary activity, that could well be to the detriment of the wider community. I do not want to see police officers spending excessive time at the enforcement end of the system.

The courts and the enforcement officers should enforce the penalties for which they are responsible. Those whom we charge with the enforcement of penalties, who do a difficult job at present—arresting, detaining and transporting offenders to court—already have the scope to cope with threats to their safety and with searching individuals. It is necessary to put beyond doubt the debate about whether such officers have the powers for search and entry in common law. We want to put that matter beyond doubt, to make the power statutory and to include it in the Bill.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

May I give the Minister an example of another set of circumstances, which I witnessed recently in my apartment block? Two extremely large men, who turned out to be bailiffs, were standing over a small woman neighbour of mine, ostensibly to recover moneys in connection with an unpaid congestion charge. When I went outside the block, there was yet another man in a black leather jacket, looking extremely threatening and a bit like a member of the Stasi. I challenged him twice, because he had no right to be there, but he continued to wander around a locked area of my apartment block. If, as the hon. and learned Member for Redcar says, we give bailiffs the right to enter premises to collect £40, what security checks will there be on such people? They would have

an unwarranted measure of power, and I have seen them being threatening, even at this stage.

Chris Leslie (Labour, Shipley)

We do not envisage bailiffs using the powers in civil enforcement activities, such as collecting congestion charges and parking fines. The powers are to be used to deal with persons convicted of criminal offences who have not complied with the lengthy process of the courts enforcing the fines. That does not mean that the individual will have been asked to pay only at court upon conviction. They will have gone through a period in which a warrant was issued to them—it might have been posted to them or served on them in person at their door—and the enforcement officer might find months or even years later that there has been a constant snubbing of the court's authority.

We need to ensure that no matter what the conviction, the court can use the authority of the enforcement officers to ensure that justice is done, even in relation to offences that the hon. Lady might regard as minor criminal offences. Although we do not envisage that the powers will be used frequently because the circumstances in which they will be used will not be the norm in the enforcement process, it is important that enforcement officers can make it clear to offenders that they have the power to recover the fine and detain them, should they exercise the powers that we are proposing.

Sylvia Hermon (UUP, North Down)

Will the Minister quantify the problem that we are facing by giving the Committee an estimate of the amount of outstanding fines? That would be helpful.

Chris Leslie (Labour, Shipley)

I am afraid that over the years a significant backlog of outstanding fines of something in the order of a couple of hundred million pounds has been accrued in England and Wales. Traditionally, only about half the fines imposed have been collected, although this year we improved that and in the outturn for the last quarter of the last financial year we managed to recover about 76 per cent. of the fines imposed. However, that means that 24 per cent. of fines have not been recovered, which is unacceptable. It is important that courts have the powers to take that extra step to enforce the decisions that they have made if necessary.

If we are to improve public confidence in the criminal justice system, the public needs to see that persons are arrested if they are suspected of committing a crime, and are taken through the courts and fined or sentenced appropriately if they are found guilty. Given that offenders sometimes manage to evade their sentence, perhaps because of legal loopholes, is it any wonder that the public have little confidence in the criminal justice system? The steps that we are proposing are necessary to improve public confidence and make it clear that people cannot avoid paying their dues if they are fined for committing a criminal offence.

The hon. Member for Chesham and Amersham asked about security checks. We already have security checks for fine enforcement officers, but in April 2005, under the unified administration process, we will be rolling out the new post of fine enforcement officer, which was provided for in the Courts Act 2003. There

will be further improvements for those fine enforcement officers who will have new powers under the Act, and extra security provisions will be associated with them.

Sylvia Hermon (UUP, North Down)

I am concerned that we are increasing powers to civilian enforcement officers without a full explanation being given to the Committee. Could the Minister reflect on the fact, which he has indicated to the Committee, that recent figures show a significant improvement in the recovery of fines from offenders. That happened before any extension of powers to civilian enforcement officers. Could the Minister enlighten us as to how that improvement was achieved without the extension of these powers?

Chris Leslie (Labour, Shipley)

I certainly could, because I feel as though I have been living and breathing the court enforcement process for the past 12 months. That is a major achievement, and I am glad that the hon. Lady recognises it. The figure has increased to 76 per cent. in the last quarter, but that is due to squeezing every last available opportunity through the existing legal powers and managing the system as rigorously as we can within the legislative framework. That is not to say that we cannot make further improvements. However, today, we are talking not just about the sentences of the court, but about compensation for the victims of crime that frequently is not paid by the offender.

I am sure that we all know individuals—many of them constituents—who have complained that despite an offender being found guilty and sentenced, they evade the system and never pay the compensation due to the victim. It is important that we give the extra powers to enforcement officers so that they can ensure that the compensation goes to the victim. That is why it is important to take steps in the Bill to cover victims' provisions, among other things. We can make further improvements beyond the 76 per cent. that we already have achieved, because a significant number of offenders still evade the system.

New clause 43 gives magistrates courts the power to access information held by organisations in the public and private sectors, such as financial institutions and local authorities, which might be of assistance in tracing offenders whose whereabouts are unknown. Currently, despite the courts' best efforts, they have few ways of keeping track of offenders' details if the offender chooses not to inform them of any changes to those details. This power will be used where there is an outstanding fine or community penalty breach warrant against an offender, and all other routes whereby they might have been traced have been exhausted.

Civilian enforcement officers and approved agencies can regularly be impeded in executing warrants due an offender's details not being correct. That can happen for a number of reasons: the offender may have given false information or multiple addresses, or he may have moved from the address that was initially given. That contributes to many unsuccessfully executed warrants each year. In such circumstances, it is

possible that both public and private organisations may hold more up-to-date information on offenders than the court. However, the inability of the court to access such data is a substantial barrier to an effective enforcement regime. The information that is required under this measure—name, address, date of birth and national insurance number where available—should be available to the courts to enforce sentences more effectively.

Although the Department for Constitutional Affairs is seeking other methods to improve the provision of data to courts, such as sharing data voluntarily between Departments, this power will help to maximise the courts' data-sharing potential. I should like to make it clear that the power is fully compliant with all current data protection legislation. Schedule 1 to the Data Protection Act 1998 sets out the principles that must be adhered to: ''processing'' includes the disclosure of data to another party, and ''personal data'' include the type of information that would be obtained under the data disclosure order.

Under the first data protection principle,

''Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless . . . at least one of the''

range of

''conditions in Schedule 2 is''

satisfied. One condition is that

''processing is necessary . . . for the administration of justice''.

That encompasses our proposals. Under the second principle,

''Personal data must be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with . . . those purposes.''

However, there are relevant exemptions in section 35 of the 1998 Act. Disclosure of personal data is permitted where it is required by the order of a court or is necessary

''for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings)''.

Either of those exemptions would encompass our proposal. My Department's legal group assures me that those powers are also compliant with the European convention on human rights.

New clause 44 is necessary to bring into effect the schedule containing the powers to allow the proceedings on a breach of a community penalty to be commenced and heard by a court other than the one responsible for overseeing the community penalty in the first place. I had meetings with several justices' chief executives. Mr. Alan Eccles, the justices' chief executive for the west midlands, expressed very clearly his frustration that he did not have sufficient powers to allow proceedings to breach and a community penalty to be commenced and heard by a magistrates court other than the court responsible for overseeing that initial community penalty.

New schedule 3 gives the courts those powers. That will enable warrants to be enforced more effectively. That is an example of responding to grassroots concerns about the powers being inadequate. At present, there are restrictions on which courts can enforce a community penalty. The precise form of the

restrictions vary according to the type of sentence, but in practice they tend to mean that only the court that passed the sentence can issue a warrant or summons to secure the attendance of an offender who is in breach, and a warrant or summons must specify that the defendant appears before that court.

The new powers are necessary to improve performance, particularly in respect of breached warrants. The current situation creates difficulties where the offender moves away from the area of the court and fails to contact the probation service. It is essential that any magistrates court is allowed to execute a warrant or summons to secure the attendance of an offender. The powers will bring efficiency gains for the courts by more effective and efficient deployment of enforcement officers.

Government amendments Nos. 126 and 127 simply amend the long title of the Bill to include the subject matter of the other new clauses and new schedules. Those changes are necessary. I believe that enforcement officers will welcome them, and I hope that they will raise public confidence in the ability of the courts to enforce their decisions.

Dominic Grieve (Conservative, Beaconsfield)

At a late stage, the Government have given us a massive area to consider. The Minister has properly split it into three areas. First, I shall concentrate on the powers of the authorised officers. I am broadly satisfied with his explanations on the other two matters that he raised, although I may return to one or two points of detail.

We need to go back to some basic principles, and I make no apology for doing so. Policing in the United Kingdom—and certainly in England and Wales—is, to use the right expression, carried out by consent. That means that it requires the consent of the people who are being policed and that it is an absolute and central principle that a great deal of time and effort should be expended on trying to secure consent.

The fact that there is a theoretical justification for an action does not necessarily secure consent in the real world. I spent some of my political career cutting my teeth in parts of south London and standing as a candidate for an area that included Brixton in the mid-1980s, where it was obvious what happens when the limits of consent in communities are reached in relation to policing. Successive Governments have taken those facts on board by going to considerable lengths to ensure the monitoring of the performance of the police, oversight of the manner in which they carry out their work, and—sometimes this is contrary to the wishes of other people in this country—the making of concessions with regard to what they can or cannot do in order to maintain consent.

Only last weekend, a Minister of State at the Home Office expressed concern that, although there was no suggestion that the police were doing their job improperly, the manner in which the power given to them under the Anti-terrorism, Crime and Security Act 2001 in respect of stopping and searching at random was being carried out might lead to a progressive withdrawal of consent in certain sections of society because they feel that the actions are oppressive or onerous even though Parliament has

decreed that they are appropriate in view of the threat that we are facing. I make those preliminary remarks because we must bear such facts in mind when considering the powers that we are giving authorised officers in executing warrants.

Authorised officers are bailiffs, as has been said, although we are admittedly using different terminology and giving them a slightly different guise. On the whole, my experience with bailiffs, which comes from dealing with them in legislation and even professionally, is that many are of the utmost reputability and use considerable sensitivity in carrying out their work. None the less, we are about to give considerable powers to non-uniformed individuals—namely authorised officers of the court. We are allowing them to enter private premises, which will not necessarily be the premises of the person whom they are seeking, to carry out searches. We are allowing them the most extensive powers for the perfectly laudable reason that the Minister has given: ensuring that fines are paid and that the 76 per cent. rate goes up to 80 per cent. or 90 per cent.

I do not disagree with that objective. However, Parliament has a long history of paying considerable attention to how powers are exercised, and as there could be serious consequences for the relationship between law enforcement agencies and the wider community, I am a little surprised that we are apparently introducing such potentially draconian legislation without paying real regard to the consequences on the ground on a day-to-day basis.

When we intervened on the Minister, I would have been greatly reassured if he had said that he recognised that point, but that the Government would set up a supervisory authority to ensure the collation of statistics and the circulation of best practice, and to provide a regulatory mechanism for the informal resolution of complaints. However, we are giving powers to groups and individuals who—I do not mean this too pejoratively—carry out their operations as lone rangers. There is no central co-ordination, and I do not believe that there will be, although some professional bodies cover the organisations involved. I am anxious that we are creating the potential for the build-up of resentments that may ultimately manifest themselves in public order problems.

If the Minister is right in his intention and aim, it must follow that the powers described in the new clause will frequently be invoked, because that will be necessary if we are to raise the 76 per cent. level and meet the target. I dare say that bailiffs and enforcement officers will sometimes visit millionaires' properties, but the nature of things suggests that it will be in deprived areas that people accumulate unpaid fines, because that is the way that the world is. That means that it will mainly be in areas of deprivation that enforcement officers will carry out their perfectly commendable duties. In the process, they will be going into people's houses, knocking down their doors and doing all the other activities that the police have to do, but there will be no point of reference or contact such as the local police station or a local beat officer who can help resolve underlying tensions and disputes.

We need those mechanisms, which we have tried to introduce over a 25-year period, at a time when the country is very diverse. There are all sorts of new people in the country with new cultural norms, and those norms include views on the privacy of the home and the sanctity of the family unit. Those things have to be resolved so as to allow the smooth running of society. I have to say that I do not see any sign whatever in the legislation that those factors have been taken into account. If the legislation starts to go wrong, the first consequence will be that we will have to revisit the issues at a parliamentary level. We will have to create the necessary structures. I am a Conservative; I dislike spending money unnecessarily, and I do not particularly want further bureaucratic supervisory structures. However, for once I am not sure that there is not a necessity for one.

I want to make sure that the system works, and I am not at all convinced that the proposed structures will work. The enforcement officers will be very active in some parts of our metropolitan centres; they will be out of uniform, they will go around trying to enforce the court orders and making inquiries and they will inevitably be intrusive into property. They will be visible and may cause resentment. None of that means that we should not go ahead with this project, but we should be very careful about what we are doing.

In response to my interventions, the Minister placed great emphasis on the fact that there would be formal methods of redress. I am not interested in formal methods of redress, but in the informal methods of redress that my experience as a politician suggests are far more effective and less costly in resolving the sorts of disputes that arise even in my own constituency involving people who feel that they have been improperly stopped by the police. As I always say to my police officers, ''Forget about the formal complaints system; send somebody round to have a chat with him.'' Where would that happen in this context?

I am not against the proposals, but I do not think that the consequences of the new powers have been fully or properly thought through. If they had been, the Minister would have been able to tell us more. May I urge him to do a bit of thinking and consultation between now and Report?

I do not mean this unkindly to the Minister, who is sitting next to the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), but I hope that there is enough joined-up government on this matter. This issue falls very much within the Home Office remit on community relations. I want to hear that there has been adequate Home Office input and link-up in establishing that what is proposed will work smoothly and properly, and that the glitches that I fear will be inevitable will be capable of resolution. Those are my concerns about the powers being given to authorised officers.

On the whole, we have had a very good set of rules in this country that tries, as far as is possible and compatible with proper law enforcement, to minimise the rights of the state against the individual. I accept that they have to be adjusted from time to time, and this may be the time to adjust them on enforcement. If we are to adjust them, however, we should be jolly careful that we understand the consequences and that we take steps to minimise the problems that could arise. Those are my comments on new schedule 2.

I am much more sympathetic towards the other proposals. It seems to me that the Minister has put in adequate safeguards, particularly in relation to data sharing, that reduce what is sought to a minimum, and that that is compatible with his objectives.

I wish to raise a question about the community penalties. If breaches of community penalties are not to be dealt with by the court that carried out the original sentencing, how will we ensure that the courts are seized sufficiently of the full facts that would enable them to deal with such matters properly? I accept that, even now, a person does not necessarily go back to the same court or tribunal that originally sentenced them, but I am concerned that the information should be able to pass adequately from one court to another. I am afraid that my experience as a lawyer is that information very often does not pass from one court to another, which can lead to potential injustice. With that reservation, I understand what the Minister seeks to do.

David Heath (Liberal Democrat, Somerton and Frome)

I share the hon. Gentleman's broad analysis. I do not have a great problem with the latter amendments, but I have very serious issues to raise about new clause 42 and new schedule 2 that go much wider than my initial and perhaps inevitable comment. After spending hour after hour, week after week and month after month discussing two major measures—the Courts Act 2003 and the Criminal Justice Act 2003—I do not understand why these provisions were not introduced in that legislation, unless it was because Ministers felt that they could not pass such contentious legislation at that time. Perhaps they felt that the softer option was to introduce it now.

No one would argue against the need for the better enforcement of fines and court sentencing. No one wants to see anyone get away with cocking a snook at the courts and not paying their due. However, that must tempered against the limits in law in this country that allow some of our citizens to do things to other citizens. We do not normally allow people to arrest other citizens, forcibly to enter their homes, cause distress by taking their property or search them. For clear reasons, however, there are certain categories of people to whom we do give that power, and they are generally people about whom we use the term ''office of constable''. I still feel that the office of constable is important. I know that the Government do not give a toss about it, but although they do not care how far they blur the edges, many people in this country, including the police themselves, feel that an important distinction must be made between those to whom we provide extensive powers and those to whom we do not.

I am worried that we are extending powers to somebody called an authorised officer. That person might work directly for the court or for a company that will presumably have been contracted on the basis of having offered the lowest tender for the provision of services to a court for executing warrants. The Government are proposing that those individuals or companies, which will not have a training requirement, a reporting system or a complaints system in the same way that the police do, should be allowed on the basis of an outstanding warrant to seek forcibly to enter premises, search the person whom they find there and arrest that person and take them away. Those are serious points.

If a police officer were to exercise his powers inappropriately, everybody would know what to do about it. They could go to the senior officer—the superintendent or chief superintendent—of the basic command unit in the area. If they failed to get satisfaction, they could go to the chief constable, and the case might be investigated by the chief or deputy chief constable. If they were not satisfied with that, they could invoke the internal complaints procedure or the external complaints procedure through the Independent Police Complaints Commission.

However, I bet that not a single Committee member would know what to do if the individual involved were an employee of Group 4 or whoever has the contract to provide services to a local court. I bet that they would not know what to do if their door were knocked down and they were searched in the belief that they had something that was adverse to the execution of the warrant or if they were arrested on that basis.

The sole safeguard is that the officer can exercise his power only to the extent that it is reasonably required for the purpose. However, it would be easy to argue that exercising the power was reasonably required to effect a warrant, although that may have been wrong, and that the officer had reasonable grounds for believing that the person involved was on the premises. That judgment could be left to the discretion of the newest employee of the company, which is at arm's length from the court that issued the warrant.

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

New clause 42 - Powers of authorised officers executing warrants

Marion Roe (Conservative, Broxbourne)

I remind the Committee that with this we are discussing the following: Government new clause 43—Disclosure orders for purpose of executing warrants.

Government new clause 44—Procedure on breach of community penalty etc.

Government new schedule 2—Powers of authorised officers executing warrants.

Government new schedule 3—Procedure on breach of community penalty etc.

Government amendments Nos. 125 and 126.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you to the Committee this afternoon, Dame Marion. I was exploring the difficulties that could flow from Government new clause 42 and new schedule 2, which deal with the powers of authorised officers executing warrants. I was explaining my concerns about an individual who is probably very skilled and conscientious in what they do, but who nevertheless has not been trained and does not work within structures such as those of a police force, in which someone who holds the office of constable would work. The hon. Member for Beaconsfield (Mr. Grieve) appropriately widened the concerns, and it is a substantial concern to me that such an individual would not be trained in arrest. They will be trained if they have a good employer, but not all of them will necessarily be trained in that area.

Those people will be working within a structure that has no obvious rank structure—there is no senior officer to whom they are responsible, as a police

constable would be responsible to a basic command unit commander or, in the final reckoning, to a chief constable—and no recognised complaints structure. Indeed, the Minister's failure to provide even a glimmering of a structure this morning suggests that that has not figured much in the Government's thinking so far.

There is also a real fear—although I do not want to overstate this—that occasionally an officer will take action in circumstances involving delicate community relations, for which we insist that police officers have special training. We go out of our way to ensure that they exercise their powers of arrest, and particularly their powers of search, properly. Indeed, a huge study has just been launched to ensure that police officers use the power of search appropriately. None of that applies to authorised officers.

I foresee a further operational problem. One advantage of not being able to effect a forced entry to premises or to make an arrest without a constable attached is that the local police will be aware of the circumstances, and of what is happening. There is therefore a clear opportunity for the local police commander to say, ''Hang on a minute, you will jeopardise a police operation if you do things in that way at that time.'' There is a real possibility that a court official could arrive halfway through a surveillance, blast their way through the door and start doing cack-handed searches while the crime squad waits outside, frustrated by the fact that its entire operation is being brought to naught by such action.

The Minister is smiling, as if that would not happen. Let him consider the history of operations in which more than one force was involved, or in which a force and Her Majesty's Customs and Excise have failed to communicate properly. If he considers all the opportunities for destroying what may have required many months of patient police work, he will realise that this is a real threat, which should be avoided.

For all those reasons, I am wary of the proposal. I want effective enforcement of court orders and fines imposed by a court. I want things to happen within the rule of law, and I want to ensure that everyone involved is properly trained, and that there is redress beyond the very basic redress of a civil remedy that the Minister seems to advocate in the case of an action that falls outside the scope of paragraph 2 of new schedule 2. We are not yet satisfied that that is the case.

I want to ask one direct question. The authorised officer is defined as an authorised officer as specified in the Magistrates' Courts Act 1980. Could that include, mutatis mutandis, the designated officers under the Courts Act 2003? It seems to me that although they would not normally be operating in those circumstances, there is a mix and match between them. There are fines officers appointed by the Lord Chancellor, there are designated officers under the Courts Act who are, effectively, appointed by the local magistrates bench, and there are these authorised officers. I want to ensure that we are talking about the same species in all instances, and that there is a

read-across between the different pieces of legislation. I look forward to hearing the Minister's response, because he has not yet convinced me that this is not a hefty sledgehammer with which to crack a relatively small nut.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I do not want to detain the Committee for long. I have said before that I would like the collection of fines to improve, and the Minister has told me that the level of collection under his jurisdiction has improved, which is a matter for great rejoicing.

However, I know from other Front-Bench utterances that the Government will seek to rely increasingly on fines. It seems to me that these provisions are fairly draconian, in order to back up that policy; the level of fine collection must remain the same or improve, so that the Government's intentions are not defeated.

I am particularly worried about one aspect. On 30 June, the Minister sent a letter to me explaining these latest amendments, and it says that they would establish certain powers. One is a primary data-sharing power to enable the courts to demand access to data held by credit reference and financial institutions. I appreciate that that is a limited amount of information, but the demand itself may have unintended consequences. Therefore, I want to probe a little further what is in the Minister's mind.

It seems to me that the very act of demanding access to data held by a bank, a financial institution or a credit reference agency might in itself cause that bank, financial institution or credit organisation to draw adverse inferences about the individual who the courts have in their sights. How does the Minister view that demand from the court? Will it be accompanied by a proviso to ensure that the institution of which the inquiry is being made draws no adverse inferences from the inquiry? How will the citizen be protected? When the state takes for the courts powers that allow any financial institution and any credit reference organisation to be accessed, we have to ensure that there are no unintended consequences.

In the past—even some Committee members might know this—if people did not make payments on their American Express cards, the company was particularly vociferous in ensuring that their credit ratings went down all round the world. When someone is travelling a long distance and is away from home for six or eight weeks, that can be a bit embarrassing, because if they pay their credit card by cheque they have not been at home to do so. When they find that they have a bad credit rating that has followed them to the other end of the world, it can cause difficulties. I seek assurances from the Minister, because that is important.

Chris Leslie (Labour, Shipley)

First, it would be useful to address the point about data sharing and the data disclosure order, which the hon. Lady raised. She made a reasonable point about the act of demanding rather than simply requesting. As I have said, I do not think that the data disclosure order will be required frequently, because I hope that through discussions and persuasive means we can get

the consent of different public and private organisations to share data on the limited basis that we are talking about—using the national insurance number, address, name or date of birth for the purposes of preventing crime and ensuring that sentences are upheld. Where those orders need to be made—I can envisage such circumstances—we will have the coercive power to ensure that that data is relinquished to the court. That is justifiable.

Some may have asked whether the provision is compatible with general human rights such as the right to privacy; in a sense, the hon. Lady's point touches on those issues. However, the provision is justified for the sake of preventing crime. The need to uphold the deterrent effect of sentences and sanctions gives us a justification for stepping into the realm of private data. That is part of the data protection arrangements that are already well entrenched.

The hon. Lady may not be familiar with this, but a pilot is taking place in south Yorkshire under provisions in the Courts Act 2003 for a register of judgments to be set up. Fines would be put on a register available to financial institutions. That would be an additional deterrent for individuals and would ensure that they paid their fines when they were due. We are testing that principle in the field to see how it works. It has received a lot of publicity, and many people who have felt that their credit rating may be affected by defaulting on criminal fines have been persuaded to pay them more readily. That is a perfectly legitimate incentive to give someone convicted of a criminal offence, to ensure that they pay their fine. I take on board the point that the hon. Member for Chesham and Amersham asked about, but as we need to ensure that the courts have the information to pursue enforcement, the provision is warranted and reasonable.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I was not aware of the pilot but I will be interested to see the outcome of it. I am worried, because surely a name, date of birth, national insurance number and address can be obtained from sources other than financial institutions and credit reference agencies—so why go to those lengths? This is effectively a ''name and shame'' policy; surely the courts and the Government can provide that information from their own records on individuals.

Chris Leslie (Labour, Shipley)

Indeed, we hope that the bulk of the information is already in the public sector and in the public realm. However, we are finding that certain individuals manage to evade that possibility: they simply never put their names on the driving licence database, complete their tax returns or anything else. They manage to skip through society without recording themselves in a consistent and verifiable way. Yet, they will still be able to get credit, loans and access to resources through the private sector and the financial services industry, which, on occasion, quite happy to co-operate.

In some circumstances we need the back-stop ability to say that we have this power, and we want the extra information. I am sure that the hon. Lady knows that although the public sector's computerised recording systems and many other databases are near-perfect, from time to time there is a loophole or

lacuna and things are missed out. We should be able to get the information from other sources, which is why the provision has been included. It will be interesting to see the outcome of the pilot in south Yorkshire concerning the deterrent effect. Although this measure will not have precisely the same effect, it is in harmony with those changes.

I shall deal with the points raised by the hon. Members for Beaconsfield and for Somerton and Frome (Mr. Heath). I am sorry that they are cautious about these measures and have used the word ''draconian'' and other doom-and-gloom terms. There are sufficient safeguards in place to ensure that they will work effectively.

Both hon. Gentlemen are concerned about complaints processes. We must not forget that civilian enforcement officers have been around for a long time and, from time to time, complaints have been made against them. Such a complaint goes to the manager of the enforcement section of the magistrates court committee. If no satisfaction is received at that stage, the complaint moves to the justices' chief executive of the magistrates court committee, whose adjudication on the complaint is normally final as far that that organisation is concerned. If any further redress is necessary, it falls to the courts to sort it out—for example, individual officers can be sued for trespass if they have used force, and so on. It is important not to neglect the fact enforcement officers will need guidance and training—which we already provide—particularly as they step up into the realm of approved enforcement activity. We will continue to do that.

The hon. Member for Somerton and Frome mentioned the onset of the new fines officer posts. The Courts Act 2003 will already be kicking in in many magistrates courts authorities. There is a significant package of training and best practice guidance rolling out throughout the country, not least in anticipation of unified administration, and I assure the hon. Gentleman that the necessary training for fines officers to operate these provisions satisfactorily will be incorporated in it.

There is a need to consider the adequacy of the complaints arrangements. Although I a little bit sceptical about whether that is necessary, I am aware that the White Paper published in March 2003, which considered enforcement and security industry issues in general, speculated about whether it might be possible for the Security Industry Authority—established as a statutory body—to contain a complaints board. We have not come to that conclusion in relation to criminal fine enforcement activity, but in the light of the comments made by the hon. Member for Beaconsfield, I will talk to my colleagues who are involved in that area of policy and see whether we can investigate that idea further. My feeling is that it is not necessary and the current provisions are suitable.

The hon. Gentleman concluded that we were talking about bailiffs. It is important not to regard all the individuals involved as bailiffs—or, as we traditionally know them, those involved in serving

distress warrants and sequestering or seizing goods to pay for debts. We are, by and large, talking about civilian fine enforcement officers who have warrants for arrest and arrest people, and take them to court using bail and no-bail warrants; they are already engaged with and trained in a number of relevant activities. We are talking about all officers authorised by the court to act on its behalf who are acting after due process has been gone through in respect of each of the individuals concerned. The individual will have been convicted of a criminal offence, will have a sentence outstanding and will already have been subject to attempts to enforce that sentence; the different avenues will have been fruitlessly explored. In extreme situations, a point may be reached where there is a need for face-to-face visits, arrest and, if necessary, entry to property to ensure that the sentence is upheld.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to hear about some of the different avenues. I am still a little confused about the differences between authorised officers in the Bill and designated officers and fines officers in the Courts Act 2003. Is one group a subset of the other, or is each group entirely distinct, in which case some will not have the powers that accrue from the new clause and proposed new schedule 4A to the specific category of authorised officers appointed under the Magistrates' Courts Act 1980?

Chris Leslie (Labour, Shipley)

That is a fair point. The hon. Gentleman knows that the courts are in a transitional phase. We are changing from having 42 magistrates courts committees, which approve their own officers to execute warrants of the same type that can be executed by any civilian enforcement officer across the country, to a new system under unified administration wherein, in effect, civil servants will have the new powers once they become fines officers; that will give them the extra powers under the Courts Act. We anticipate that the individuals will largely be the same, although technically the post is different so it comes with requirements for training and expertise. The jobs will be similar and parallel, but fines officer posts will be introduced along with unified administration in April 2005.

David Heath (Liberal Democrat, Somerton and Frome)

I am sorry to labour the point, but, in that case, the amendment does not give the powers to the right people. There is nothing in the Courts Act that redesignates people who are authorised officers under section 125A of the Magistrates' Courts Act 1980 as the officers who are referred to in the 2003 Act. I ask the Minister to look at that again, as there seems to be some disjunction.

Chris Leslie (Labour, Shipley)

I will look at that again. Our intention is that the powers will apply to fines officers as they will be known from April 2005. I would have thought that there was an amendment to the 2003 Act relating to changes to the Magistrates' Courts Act 1980.

David Heath (Liberal Democrat, Somerton and Frome)

I cannot find it.

Chris Leslie (Labour, Shipley)

If the hon. Gentleman cannot find it, I shall certainly look. We want to make sure that the changes are technically watertight.

The hon. Gentleman suggested that such powers should be exercised only by the police. As I said, it is

important that we try not to place the burden of court enforcement on the police on all occasions, which is what we might have to do if we continue with the requirement for having a police officer at all times.

Dominic Grieve (Conservative, Beaconsfield)

I do not share the view that the powers have to be exercised by the police—indeed, I am not 100 per cent. whether that was what the hon. Member for Somerton and Frome was saying. We agreed in respect of those who exercise the powers that we must be mindful of the impact that that exercise is likely to have, and that there should be adequate preparation. In particular, there should be proper mechanisms of accountability and consultation for what I fear could otherwise become a freelance operation. The Minister said that the officers in question are not bailiffs. Of course, they are not, but he knows that many of them will come from that background.

Chris Leslie (Labour, Shipley)

I understand the point that both hon. Gentlemen are making, but there is sufficient structure and accountability in the courts themselves through the management of the enforcement sections and the justices' chief executives, which are responsible for managing them. There is a good structure in place for complaints, discipline, training and supervision.

I was intrigued by the point that the hon. Member for Somerton and Frome made about the possibility of a police SWAT—special weapons and tactics—team camping outside someone's door, only for a hapless enforcement officer to come along and ruin it all by appearing on the scene. Of course, at present, enforcement officers knock on doors, make arrests, take people away and so forth, so any problems envisaged with the provisions in future should be occurring now, and we do not think that there are any. There are good relationships between police and court enforcement staff and there is liaison between them, and we hope that that will continue. However, that does not necessarily mean that enforcement officers should require a police officer to come with them whenever they are enforcing in a significant way, such as when they are searching or entering a property.

The hon. Member for Beaconsfield raised the issue of transferring community penalty breach warrants and asked how courts would be apprised of the full facts of a case if a different court had been considering it. I appreciate his experience in some of these matters. He suggested that courts sometimes do not have all the paperwork to hand. We will put in place systems that will improve the transmission of information from one court to another—indeed, transferring the whole order to another court should ensure that the information and files go there as part of that process. As we move towards improved information technology and better use of it by the courts, I am confident that those problems will begin to disappear.

The new clauses and new schedules are vital to the next phase of improving fine enforcement. Although I understand the points raised by Opposition Members, I regret that we have not focused sufficiently on the need to uphold the decision of the courts to collect compensation on behalf of victims. That would make

sure that the balance is shifted in favour of the victims of crime and the law-abiding public, and that we close loopholes for those who have been convicted of criminal offences. I believe that the new clauses and schedules will make an appreciable difference to the powers in the enforcement process, and I commend them to the Committee.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New clause 43 - Disclosure orders for purpose of executing warrants

New Clause 44 - Procedure on breach of community penalty etc

New clause 2 - Amendments to the Youth Justice and

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move, That the clause be read a Second time.

The new clause is similar to the one tabled in the other place by Viscount Bridgeman. It is an attempt to get on record the Minister's views on the use of new technology.

There are new initiatives under way on the better treatment of witnesses, which we hope will bring great benefits. I refer in particular to the ''no witness, no justice'' initiative, which will help to make sure that a witness's needs are taken into account early in criminal court proceedings. I know that the Minister is familiar with that initiative. The new clause is concerned with, among other things, victims of domestic violence. We want to develop procedures that will ensure that victims have more certainty about the process of going to court.

In the experience of Victim Support, most victims are terrified at the thought of seeing their abuser, as we can well imagine; they are even quite frightened by the thought of seeing relatives of the abuser, because of the effect that domestic abuse has had on them. It is possible for the court to direct that a victim can give evidence from behind a screen or from a television-link room. Those are special measures, but they are not always requested or, indeed, provided. The amendment aims to give victims some certainty by making it a rebuttable presumption that special measures such as screens or a TV link will be used when the victim gives evidence in court. That would mean that right at the start of the process, when the victim reports the abuse and the possibility of

prosecution is being considered, a support worker, advocate, the police, or whoever has contact with the victim is able to explain to her the protection that the court can grant if she wishes to use those measures.

In the other place, there was some discussion about the fact that every victim has individual views, but the amendment will give victims the option to change their mind. Some people will decide on the day of the court appearance that they have reached the point where they want the defendant to see them giving evidence. The amendment does not prevent them from giving evidence in the usual fashion; instead, it offers protection to everybody. Many victims will receive the information about special measures and be relieved that the court process will not be so much of an ordeal. Any fear or worry that they have about having to face the defendant in court will be eliminated at that point—they will not have to wait, for example, until the early stages of the prosecution process, or even until the day of the trial.

To summarise what one Victim Support witness service staff member said, victims can reap the benefit of forward planning from day one. I hope that the Minister will consider accepting this protection.

Vera Baird (Labour, Redcar)

Since the 1998 publication of ''Speaking Up for Justice''—the Home Office sex offences review report—it has always been presumed to be likely that victims of domestic violence will automatically be entitled to special measures, in the same way that victims of offences of sexual violence have an automatic right to such measures unless they ask that they not to be given. That is largely because there is almost invariably a coincidence between physical domestic violence and sexual violence. Whether or not a prosecution is being brought for a sex offence, it is well known that there is a widespread connection between the two things. Therefore, if one category of person is deemed to be an vulnerable witness who merits such provisions, the other ought to be deemed to be the same.

The fact that that presumption is not in place—the amendment would introduce it—does not mean that women who come to court for domestic violence cases cannot apply through the Crown Prosecution Service for special measures. The way that the hon. Lady has set out is much less satisfactory, because it leaves the matter until, at the earliest, the pre-trial review, which is a business hearing to organise how the trial will continue. It might even be dealt with on the day of the trial. The woman concerned will not know from the outset whether she has to face the perpetrator of her misery in court while giving probably very delicate evidence. Women's groups, such as Refuge and Women's Aid, and so on, who have briefed all Committee members, say that that is likely to be part of a forest of things that tend to deter women not only from making complaints, but from going through with them. It is not just that they may have to give evidence: they may not know whether they have to do so without the protections.

The difficulty with the second tier of protection, under which a woman would apply later for the

discretion to be exercised in her favour, is that being able satisfactorily to accomplish that depends on having appropriate officers and CPS staff present, who will be sensitive to the requests of the woman, or who will, even without her asking, reach out and invite her to say whether she wants such measures. That will not necessarily happen. It is odd that such vulnerable witnesses should be left, as it were, at the mercy of the expertise of an individual officer in an individual case, which may or may not be strong.

However, there is something to be gained from giving that category of women the same support that the category of sex offence complainants already has. The provision will do that. I would be interested to hear if there are any powerful reasons against it. To speculate before the Minister responds, one of them might yet again be the difficulty to categorise what is an offence of domestic violence. The new clause is designed to circumvent the absence of a definition of domestic violence by merely referring to an offence that involves

''any form of molestation, including violence''.

That is wide enough for anybody who comes into this category to be adequately covered. I invite the Government to take a serious look at the new clause.

David Heath (Liberal Democrat, Somerton and Frome)

I do not need to add a great deal to what has been said by the hon. Member for Chesham and Amersham (Mrs. Gillan) and the hon. and learned Member for Redcar (Vera Baird).

My hon. Friend the Member for Romsey (Sandra Gidley) and I have added our names to the new clause. We anticipate that the Government's response will be that it is unnecessary because what it does is already provided on the great bulk of occasions. I simply echo the point made by the hon. and learned Member for Redcar: there is a world of difference between telling someone who might be fearful, confused and dubious about bringing matters before a court, ''You will probably have this protection,'' and saying to them, ''You will have that protection right from day one.'' We are trying to give the greatest possible encouragement to witnesses and victims to make their complaint and to be prepared to take it through the court process. There are enough obstacles in the way. The new clause would simply remove a perceived obstacle—even if it often is not one in practical terms—with no detriment to the process.

The witness or victim will not have a lawyer appearing on their behalf to make the application; that will be done by the prosecution. However, the prosecution acts on behalf of the Crown, not the victim. That is an important distinction. One hopes that the prosecution team will always bear in mind the best interests of the victim as witness, that they will ensure that they are aware of the needs and wishes of that individual, and that they will make the application to the court. However, that will not necessarily be the case. This amendment is sensible in that it provides a failsafe mechanism. It does not prevent somebody from confronting their alleged assailant in court, if that is what they wish to do,

but it provides them with an automatic failsafe position, which gives them the protection they may well want in every circumstance. I hope that the Minister will give this suggestion serious consideration.

Paul Goggins (Labour, Wythenshawe and Sale East)

All Committee members agree that it is imperative that where it is clear that a victim is too frightened or distressed to give evidence, special measures should be available to help them. Section 17 of the Youth Justice and Criminal Evidence Act 1999 already enables victims of domestic violence to have access to special measures where the court decides that that is appropriate. It states that the court must take into account, among other things, such factors as the domestic circumstances of the witness, any behaviour towards the witness on the part of the accused, and the nature and alleged circumstances of the offence. The new clause would provide that the automatic access to special measures, which is given to victims of sexual offences and children under 17, is given also to victims of domestic violence. We have carefully considered these issues, and we have discussed them with representatives of Victim Support. We believe that the appropriate balance has been struck. The special nature of sexual offences and the sensitive nature of the evidence that is given mean that these cases are the only ones where special measures should be automatically available for adults.

I agree with my hon. and learned Friend the Member for Redcar that there is often overlap between domestic violence cases and cases of sexual offending. We recognise that overlap, and where there are sexual offences the automatic entitlement will apply. She is right to say that, on the whole, the range of sexual offences is narrower than the range of domestic violence offences. That is another issue that we have weighed in the balance.

I know that there are concerns that special measures are not always applied for and that the courts are not always willing to allow victims of domestic violence to have access to them, although special measures have yet to be fully rolled out. I am happy to confirm that we recognise the need to ensure better case preparation and the appropriate assessment of needs by the police and prosecution. So far, special measures have had limited availability in the magistrates courts, partly because of the need for the right kind of technological facilities and partly because of the need to pilot some of the new measures. On 21 June, we published the findings of an independent evaluation of special measures, which, I am pleased to say, showed that special measures work. For instance, one third of witnesses given special measures said that they would not have given evidence without them. Since 3 June, screens, giving evidence in private and communication aids have all been available in the magistrates court. I am sure that that wider availability and the evidence that the measures work will encourage more applications to be made and granted. We will, of course, monitor the situation carefully to ensure that full use is being made of the special measures available.

The hon. Member for Chesham and Amersham mentioned the ''no witness, no justice'' initiative, and I am delighted that she spoke so supportively. That initiative will ensure that the needs of witnesses are assessed and met. Victims of domestic violence in need of special measures will be identified at an earlier stage and applications made at the pre-trial hearing. It is clearly very important that that decision should be made as early as possible.

Vera Baird (Labour, Redcar)

My hon. Friend has referred to interesting research into the efficacy of special measures. Does it break down so that we know what proportion of special measures grants have been made to those who are automatically entitled to them, and what proportion have been made on application?

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall have to get back to my hon. and learned Friend on that interesting question. I too would like to know the answer. I will get in touch with her in due course.

We need as much certainty as possible in the process so that victims approaching the ordeal that the trial process often is can do so in the knowledge that they are supported in every way. I hope that the Committee will see that the Government take special measures very seriously. We intend to make sure that they are available to victims of domestic violence when the court feels that that is appropriate. I expect the courts to be sensitive to the needs of victims of domestic violence and to grant special measures whenever they are necessary. For those reasons, I hope that the hon. Member for Chesham and Amersham will agree to withdraw the new clause.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am delighted that the Minister has felt able to put on record the needs of domestic violence victims and acknowledge that they fall into a category of victims that should be eligible for special measures when they are vulnerable. That concerns everybody on the Committee.

I appreciate that the availability of special measures—suites and the new technology—is a limiting and inhibiting factor, but in the light of the statistics that the Minister has revealed, I presume and hope that he will keep the issue under constant review. The common-sense view is that people should be able to opt out of the process, and should not have to try to obtain protection. That would set people's mind at rest much earlier in what is obviously a painful and traumatic procedure. However, I am grateful that we are moving in the right direction and that the Minister has put that on the record. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 8 - Mandatory risk assessment checklist

Dominic Grieve (Conservative, Beaconsfield)

I beg to move, That the clause be read a Second time.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following: New clause 13—Use of recovery orders—

'In Part I of the Family Law Act 1986 (c.55) (child custody), after section 34 insert—

''34A Use of recovery orders in cases involving either allegations of domestic violence or a potential risk to the child

(1) If an applicant claims that their partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in their name.

(2) If there is no residence order in favour of either parent, the court may grant a recovery order.

(3) The recovery order will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter.

(4) Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—

(a) check their records to see whether either party has committed acts of violence;

(b) check to see whether either party is included on the register of domestic violence perpetrators;

(c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.

(5) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—

(a) not remove the child from the respondent;

(b) advise the respondent to seek legal representation;

(c) notify the court of their action immediately.

(6) If there is no record of violence and no reason to believe that the respondent or the child is at risk, the police will return the child to the applicant.

(7) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court.''.'.

New clause 31—Recovery orders in cases involving allegations of domestic violence or a potential risk to the child—

'After Section 34 of the Family Law Act 1986 insert—

''34A The use of recovery orders in cases involving allegations of domestic violence or a potential risk to the child

(1) If an applicant claims that his partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in his name.

(2) If there is no residence order in favour of either parent, the court may grant a recovery order,

(3) the order under subsection (2) will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter, in this instance. Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—

(a) check their records to see if either party has committed acts of violence;

(b) check to see if either party is included on the register of domestic violence perpetrators; and

(c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.

(4) Following the award of an order under subsection (2)—

(a) if records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—

(i) not remove the child from the respondent,

(ii) advise the respondent to seek legal representation, and

(iii) notify the court of their action immediately,

(b) if records show that the respondent has a history of violence and the applicant has no history of violence, the police will return the child to the applicant and notify the court,

(c) if there is no record of violence and no reason to believe that the respondent or the child is at risk, the police will return the child to the applicant,

(d) if records show that both the applicant and the respondent have a history of violence, the police will immediately seek further instructions from the court and, if necessary, take appropriate steps to protect the child.

(5) The court shall not grant interim residence or contact orders unless there is evidence that a party is wilfully refusing to attend court.

(6) The court shall not disclose the address of a women's refuge publicly or give this information to any applicant or respondent or to their legal representatives.''.'

New clause 32—Parental contact with children after separation in cases involving ill-treatment of the child or another person (No.1)—

'After section 8 in Part II of the Children Act 1989 insert—

''When determining whether the child will be safe if contact or residence is granted to the abusive party, the Court shall, so far as is practicable, have regard to the following matters:

(a) the nature and severity of the ill-treatment;

(b) how recently the ill-treatment occurred;

(c) the frequency of the ill-treatment;

(d) the risk of further ill-treatment occurring;

(e) the physical, sexual or emotional harm inflicted on the child or harm suffered by the child as a result of seeing or hearing ill-treatment of another person;

(f) whether the other party to the proceedings

(i) considers that the child will be safe while the abusive party has residence of, or contact with, the child; and

(ii) consents to the abusive party having residence of, or contact with, the child;

(g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;

(h) any steps taken by the abusive party to prevent further ill-treatment from occurring;

(i) any matters as the court considers relevant.''.'.

New clause 33—Parental contact with children after separation in cases involving ill-treatment of the child or another person (No.2)—

After section 8 in Part II of the Children Act 1989 insert—

''(8A) Allegations of ill-treatment made in section 8 proceedings

(1) Where it is alleged that a party to the proceedings has inflicted ill-treatment on the child or on another person, the Court shall, as soon as practicable, determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings, whether the allegation of ill-treatment is proved.

(2) Where the Court is satisfied that a party to the proceedings (in this section referred to as the abusive party) has inflicted ill-treatment on the child or on another person, the Court shall not

(a) make any order granting the abusive party residence of the child; or

(b) make any order granting the abusive party contact (other than supervised contact) with that child, unless the child wants to see the abusive party and the Court is satisfied that the child will be safe while the abusive party has residence of or contact with the child.

(3) Notwithstanding subsection 8A(i), where in any section 8 proceedings,

(a) the court is unable to determine on the basis of the evidence presented to it by or on behalf of the parties to the proceedings whether or not an allegation of ill-treatment is proved; but

(b) the Court is satisfied that there is a risk of harm to the child, the Court may make any order under this Act that it considers necessary to protect the child.''.'.

New clause 34—Recovery orders in cases involving allegations of domestic violence or potential risk to the child—

'After section 34 of the Family Law Act 1986 insert—

''34A The use of recovery orders in cases involving allegations of domestic violence or a potential risk to the child

(1) If an applicant claims that his partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in his name.

(2) If there is no residence order in favour of either parent, the court may grant a recovery order. An order under subsection (2) will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter, in this instance, before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—

(a) check their records to see if either party has committed acts of violence;

(b) check to see if either party is included on the register of domestic violence perpetrators;

(c) having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.

(3) Following the award of an order under subsection (2)—

(a) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—

(i) not remove the child from the respondent

(ii) and advise the respondent to seek legal representation

(iii) notify the court of their action immediately,

(b) If there is no record of violence and no reason to believe that the defendant or the child is at risk, the police will return the child to the applicant.

(4) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court''.'.

Dominic Grieve (Conservative, Beaconsfield)

New clause 8 is identical, apart from one line, to new clause 32, and I am conscious that other Committee members will want to speak to it. I shall not take up much of the Committee's time, because it is largely self-explanatory.

This is a good time to consider the extent to which we should take special precautions in respect of children's contact and residence with one parent who has been abusive towards another. This is a controversial area in a number of respects. First, allegations of abuse are sometimes brought against one parent by another specifically to influence the outcome of contact and residence proceedings. We should not lose sight of that. Secondly, as we have already discussed, breakdowns of relationships can cause people to behave in ways that they may subsequently greatly regret. The fact that they do so does not in itself mean that they are unsuitable to either reside or have contact with their children. We must also bear that in mind with great care.

Having established those two facts, we need to face up to the reality that there are occasions when the behaviour of one parent towards another may provide compelling evidence about their suitability to have contact or residence. We know also that where there has been a history of abuse, it may pose considerable problems in the context of future contact or residence of children with the abusive parent.

Hilton Dawson (Labour, Lancaster and Wyre)

The hon. Gentleman correctly refers to the issue of disputes between adults in these painful cases. Does he share my concern that the views of children are often not heard or given enough credence in courtrooms?

Dominic Grieve (Conservative, Beaconsfield)

That is a difficult issue. Generally, the view has been taken that the courtroom setting is a bad place to get a child's view or opinion. That is why it is generally delegated to the Children and Family Court Advisory and Support Service to try to ascertain that opinion outside a courtroom setting. How good CAFCASS may be at achieving that is utterly dependent on the competence and experience of the person doing the assessment.

In my professional career, I have regarded reports by CAFCASS or its predecessor with either delight or despair, depending on the way in which the assessment was carried out. Only last Friday at my surgery, a parent, perhaps improperly in the light of the issue of privilege, showed me a copy of a CAFCASS report about which they were complaining bitterly. Having read it, I thought it was a poorly drafted document by any standards. I have always taken the view, however, that bringing a child to court and asking them their opinion was a mistake. When I was first at the Bar, judges used to invite children in such cases to come to his or her room and have a chat, but I am not sure whether that helped matters much.

The new clause sets out a mandatory risk assessment checklist. I would hope that, in cases in which there has been abuse of one parent by another, the judge and the court would automatically run through such a checklist when deciding what to do. Most of the points raised are fairly obvious, but what is obvious and what happens in reality are not necessarily one and the same. There is an argument for having a mandatory risk assessment checklist, not because it must inevitably lead to the outcome of denying contact or residence with a particular parent, but because it might provide a useful tool to

concentrate the court's mind on the essential issues that need to be considered in such circumstances.

I would not have been willing to sign my name to new clause 32 and to ask that it be considered unless the checklist made it absolutely clear that the fact that there has been abuse by a parent does not necessarily mean that that person is unsuitable either for contact or residence. I want to emphasise that point in speaking to new clause 8. I am conscious that other hon. Members will want to speak to it and to provide different angles, and because it is so closely linked to new clause 32—it is virtually identical—I should like to conclude my remarks and listen to what they and the Minister have to say about it.

Hilton Dawson (Labour, Lancaster and Wyre)

I should like to begin with new clause 33, which needs to be taken with new clause 32, which, as the hon. Gentleman said, is almost identical to new clause 8. New clause 33 is vital to protect children. I deeply regret that the checklist in new clause 8—or new clause 32—is necessary. However, the deaths of at least 23 children during contact visits in recent years will focus our minds seriously on the issue. I regard that new clause as the most significant amendment to come before this Committee.

I shall go through some of the cases. Three young children were asphyxiated by their father on a contact visit in March 2003. The four Mubiangata children were found dead in their father's burnt-out car after a contact visit. Tony Bangs, aged 12, was strangled by his father during a contact visit, and during his father's trial, it emerged that the father had also planned to murder his other two sons to take revenge on his wife for leaving him. In 2000, Daniella Hirst, aged two, was killed by her father during a contact visit in Lincolnshire. Saba and Zeeshan Zaidi, aged seven and six, were also killed in 2000 on a contact visit. The list is long, tragic and appalling. We must do everything that we can to stop adding to that dreadful list. The fact that contact and even residence orders are being made in respect of individuals with a record not only of domestic violence, but of offences against children, surely reveals that something is very seriously wrong in this country.

According to research undertaken by the National Society for the Prevention of Cruelty to Children and Women's Aid, among 178 Women's Aid organisations across the UK last year, 18 cases were uncovered in which unsupervised contact orders had been made in favour of fathers who had criminal records of schedule 1 offences—offences against children. In my previous existence, I took part in removing children from parents who endangered them by putting them in contact with schedule 1 offenders. The Committee and the whole House are entitled to ask what family courts are doing to address those issues.

We know that there are huge links between the issues of child protection and domestic violence. A Department of Health study of women's mental health undertaken last year acknowledged that almost three quarters of children on the at-risk register live in households where domestic violence occurs. The issues are completely interwoven, but the evidence is that family courts are ignoring the impact and severity of

domestic violence on family life and especially on children.

We know that the Government are concerned about the impact of domestic violence on children. They have introduced not only this Bill, but the soon-to-be-implemented section 120 of the Adoption and Children Act 2002, which makes the witnessing of domestic violence a criterion for the assessment of significant harm. We know from research conducted by the university of Leeds for the Department for Constitutional Affairs that allegations of domestic violence feature in 23 per cent. of contact and residence cases. Yet, in 2002, the courts granted 61,356 contact orders and refused contact on only 518 occasions—0.8 per cent. of cases.

We know that section 1 of the Children Act 1989 sets out the fundamental principle:

''When a court determines any question with respect to . . . the upbringing of a child . . . the child's welfare shall be the court's paramount consideration.''

We also know that that paramountcy principle has been compromised by subsequent case law; the 1995 Appeal Court judgment re O ruled that contact is almost always in the interests of the child. Actually, it is not. It is certainly not in the interests of more than 0.8 per cent. of children who come before family courts.

The children who reported to the recent Women's Aid ''Listening to Children'' campaign, which I hosted and the Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), attended in Portcullis House last month, did not think that contact was in their interests. Kirsty, who is aged 15, did not think that it was. She told us that domestic violence makes her feel like she wants to kill herself. Chloe asked why the courts force children to see their dads when they are frightened of them. Another child asked, ''Why can daddy take me out of school and do I have to go?'' A very young child, for whom someone spoke their words, simply requested, ''Stop daddy from finding me.''

Research quoted in the Oxford university family policy briefing on child contact with non-resident parents indicated that it is the nature and quality of parenting that is crucial, not contact:

''The mere presence of fathers is not enough . . . To the extent that men remain involved in parenting after separation, or assume parenting practices they have not done before, they have a positive influence. As in intact families, the most effective way they can parent is by providing authoritative parenting . . . It is these aspects of parenting, encompassing monitoring, encouragement, love and warmth, that are consistently linked with . . . well-being''

The messages of research are that we do not need to force on children contact with violent, abusive, potentially lethal parents, because it will almost always be in their best interests not to do so. How could it be otherwise? A survey of 130 abused parents conducted by Bristol Women's Aid in 1999 elicited the disclosure that 76 per cent. of the 148 children involved had been abused sexually, physically or

emotionally or had been neglected or even abducted during contact visits.

Let us keep things in proportion. Contact is important, safe contact is a child's right and the loss of contact on separation of parents can be a painful and damaging experience. To quote again from the Oxford university research:

''Contact has potential value in terms of developing the child's sense of identity, preserving links with the wider family and providing an additional source of support for children. In ordinary circumstances a parent with an established relationship with the child should not have to prove that contact is in the child's interests. It does mean however that care needs to be taken not to overestimate the presumed benefits of contact either where there is no pre-existing relationship or where there are known risks. Where there is abuse or neglect, exposure to domestic violence or severe parental conflict, contact can be extremely damaging to children.''

There were 23 deaths of children and more than 12,000 cases of domestic violence, yet contact was refused on only 518 occasions in 2002, the most recent year for which we have figures.

The Government have identified links between witnessing domestic violence and significant harm, and there are indubitably links between the violent abuse of women and the violent abuse of children. These vital amendments are the most important that we can make to the Bill. They do not set out to stop contact; they set out ways in which the voice of the child can be heard and, above all, they set out to make contact safe. They would allow courts to distinguish between private law cases involving domestic violence and those cases in which it is not alleged. They would require courts to ensure that children will be safe before making any order of residence or contact to a parent who has been violent. Nobody who is concerned about the importance of maintaining good contact with both parents should oppose these amendments, nor should any father's group demonstrating anywhere about contact. Above all, nobody from a Government who demonstrate, time and again, their commitment to the protection of children should oppose them either.

Sandra Gidley (Liberal Democrat, Romsey)

I shall address most of my comments to new clause 13, which is tabled in my name and that of my hon. Friend the Member for Somerton and Frome. However, I shall briefly mention new clauses 8 and 32. They are important, because many of us are disappointed that, at a time when the Children Bill is being considered in another place and we are debating the Domestic Violence, Crime and Victims Bill, the Government have not sought to tackle the problems that both address. The system is not working, but the issue is contentious because nobody wants to deny parents the right to see their children. However, I question some of the cases in which unsupervised access has been granted. Many parents would say that their partners, although they were violent to them, would not hurt the children. However, we must bear in mind that a history of domestic violence is the biggest indicator that something could happen to children. We ignore that at our peril.

New clause 13 is designed to highlight a problem about the way in which recovery orders are currently

used, to clarify the legal procedures for dealing with child abductions and to ensure that those measures are not used inappropriately in cases of domestic violence. That is necessary because violence perpetrators have been able to use seek and recovery orders to track down their victims and recover children from refuges. Often, if an abused woman flees from the family home taking the children with her, her violent partner seeks legal advice claiming that it is a case of child abduction—that is all that he has to claim. If he does not know where the woman has gone, and even if a woman is in a refuge and clearly does not want him to know where she has gone, he can apply in private law proceedings for an order requiring the disclosure of information as to the whereabouts of the child. He can also apply for a recovery order requiring the child to be returned to him. The person on whom the order is served must immediately disclose to the court all the information that they have about the whereabouts of the child. Any person with a legitimate interest in proceedings under section 8 of the Children Act 1989 can apply for orders under section 33 and 34 of the Family Law Act 1986. An application for a contact or residence order will usually be made simultaneously.

Those measures were specifically designed to deal with child abductions and were consequently intended to provide a quick procedure. Orders can often be made ex parte and without prior notice being given to the other party. Problems have arisen because an order can be served on any person who might have knowledge of whereabouts, so orders have been served on close relatives and even on refuges themselves to try to make them disclose that information. It is counter-productive and clearly not in the children's best interests if they are in a refuge and the refuge staff can be forced to give information about them. Because the system is meant to be rapid, the recovery orders make it possible for abusers to take action so quickly that the mother frequently has no time to seek legal representation or, as has happened in some cases, is unable to attend court to give her side of the story before the child is removed from her care.

In the fourth annual report of the Advisory Board on Family Law, the Children Act sub-committee made recommendations on search and locate orders following an investigation into the circumstances leading up to the murder of Georgina McCarthy. The report states:

''When both parties are before the court, the court can make an informed decision about whether or not it is necessary and in the interests of the children to keep their whereabouts from the parents who have made the application.''

However, history has made it clear that some judges have found it difficult to distinguish cases of domestic violence and cases of abduction. There are examples in which orders have been granted for children to be found and then returned to violent parents. When Women's Aid, which is particularly concerned about the issue, undertook a national survey in May 2003, seven refuge organisations reported problems with recovery orders. Clearly the current system is not working, and if the Government are not minded to change it, I should be interested to know how they are

going to make sure that the existing system works. I cite one example reported to Women's Aid:

''A court order in another county issued an order for the woman's parents to disclose her address after she had fled to our area. There were police reports of domestic violence.''

In many cases, there is insufficient time to ensure that such reports are taken note of.

There were objections when similar amendments were tabled in the other place. The excuse made was that there was no need for such an amendment

''because Section 34(1) of the Family Law Act 1986 requires that a Part I order, which is more usually known as a Section 8 order under the Children Act 1989, is made before a recovery order and therefore the court will already have considered what is in the best interests of the child.''—[Official Report, House of Lords, 4 March 2004; Vol. 658, c. 875.]

As I have said, however, this is an urgent procedure and there is no requirement for detailed welfare investigations to be carried out. A section 8 order, such as an interim residence order, can be made without notice at the same time as a recovery order is granted. The situation needs to be rectified so that recovery orders cannot be misused by perpetrators of domestic violence. Even if there has been an earlier order, it is no guarantee that the court has full, up-to-date information about the circumstances of the case.

Some change is necessary, because domestic violence perpetrators have been able to use recovery orders to track down their victims and to recover children from refuges. The tragic case of Georgina McCarthy shows how the system fails women. In 1997, she fled to Penzance Women's Aid with her one-year-old son. Her violent husband, Paul Russell, used section 33 of the Family Law Act 1986 to apply for information on the child's whereabouts. Georgina's case got off to a relatively good start because her solicitor managed to prevent the address of the refuge from being disclosed, but she was later warned that her husband was coming to Penzance to find her. She considered moving to another refuge, but decided to stay where she was because she was given no guarantee that the police in another police authority area would be so supportive, and in Penzance she felt supported by the police, Women's Aid and her solicitor and barrister. On 9 May 1998, her husband found her and killed her in front of the child. If that illustration is not graphic enough to show the Government how the system can go wrong, I do not know what more they need. As it stands, the system is not in the best interests of the child or the mother, and I urge the Government to improve it if possible.

Chris Leslie (Labour, Shipley)

First, I thank hon. Members who were involved in tabling these new clauses, as they have facilitated a necessary and interesting debate. It will not be a great surprise to many hon. Members to hear that the Government have not drastically changed their position on these issues since they were aired in the other place. However, I have discussed them with Lord Filkin, who holds the relevant portfolio in the Department for Constitutional Affairs. He has had more direct dealings with some of these issues than me, but I agree with his stance on them.

It is important to note that there are two groups within this group of new clauses: new clauses 8, 32 and

33 sit best together in one group, which I will address first. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), who has great expertise in this field, made a moving speech, but I should tell him that the Government's policy is that, in most cases, children benefit from contact with both parents after a separation. Children who have such contact generally do better at school and in later life. We are therefore committed to facilitating contact between children and both parents after separation when that is in the best interests of the child and is safe for the child and all family members, and only then.

We recognise that there are problems with parental access and contact after separation. Perhaps the most important issue for parents to consider on separation is the needs of their children. Most parents make their own contact and residence arrangements without needing to go to court. Only about one in 10 make court applications about matters concerning their children—principally about contact and residence issues. About 25 per cent. of those cases involve allegations of domestic violence. As my hon. Friend said, there have been some horrific and disturbing cases in which children, the resident parent or both have been murdered as a result of contact, but as I said the vast majority of parents do not seek court intervention to decide contact arrangements, and it is a sad fact that many of the tragic deaths that have occurred took place where contact was arranged without the involvement of the courts.

Hilton Dawson (Labour, Lancaster and Wyre)

Does that not reflect the fact that people have no confidence that their concerns about domestic violence, its effects and the effect of contact on children will be heard properly? That is because of the publicity given to terrible tragedies, and all the positive publicity gained by the likes of ''Spiderman'' and his colleagues.

Chris Leslie (Labour, Shipley)

I understand my hon. Friend's point. I simply say that it should be the objective and aspiration of the Government and all parties to ensure that, where a resident parent has concerns about their own safety or that of their child, they have the confidence to seek protection through the family justice system, and the courts should be able to provide that protection.

Hilton Dawson (Labour, Lancaster and Wyre)

Is not the perfect way to engender confidence among parents to demonstrate to them, through the Bill, that there is a checklist and a mechanism by which such issues will be addressed? That way, they could go to court in the confidence and knowledge that the issues would be dealt with.

Chris Leslie (Labour, Shipley)

It is important and possible for us to demonstrate that the child's safety is paramount in all circumstances. I do not necessarily conclude that to promulgate that view we must frame a piece of legislation in a particular way, when the existing legislative framework already provides adequate protection, although perhaps that protection is not being communicated effectively. We need to get across much more effectively the message that existing

arrangements already require courts to have the welfare of the child as their paramount concern. That is what section 1 of the Children Act 1989 is all about, and that provision is already very strong.

The 1989 Act also provides the court with a checklist to which the court must have regard. It includes consideration of the physical, emotional and educational needs of the child, and any harm that the child has suffered or is at risk of suffering. In reaching its decision, a court may request additional information, which is usually provided by the Children and Family Court Advisory and Support Service and potentially includes police checks and consultation with social services. The court may also direct the local authority to investigate the child's circumstances if it believes that the child may be at such risk of significant harm that a care or supervision order may be necessary.

I therefore believe that, to a certain extent, the 1989 Act already covers many of the concerns raised by my hon. Friend the Member for Lancaster and Wyre. Although I accept that he has concerns, I believe that the 1989 Act is sufficiently strong and is capable of providing robust protection and ensuring child safety.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Member for Lancaster and Wyre referred to the fact that a number of schedule 1 offenders have been given unsupervised access to their children. How can the Minister be satisfied that the system is working when it clearly is not? I do not know what more evidence a judge needs. Is not the real problem that we have no sanction that we can use against judges when they clearly make the most peculiar decisions?

Chris Leslie (Labour, Shipley)

That is not a serious point, but I understand that the hon. Lady is frustrated because she does not feel that the message has got across sufficiently well. We need to strike the right balance and make sure that we have a framework in which contact with parents can be maintained, but only when that is in the child's best interests, and when it can be maintained in a way that is safe for the child and members of that family.

Hilton Dawson (Labour, Lancaster and Wyre)

Will my hon. Friend give way?

Chris Leslie (Labour, Shipley)

I would like to elaborate on how I believe that the arrangements provide the guarantees in the system before giving way again.

Not all contact is the same. Some is direct, some indirect. Contact can be face-to-face for a short period or be conducted through writing and receiving letters. When a party makes an application for contact, the court may rule that contact should take place directly, indirectly or perhaps in a supervised environment if there are fears about safety. The Government have been concerned about that in recent years and we have invested extra resources into the creation of child contact centres. We have committed more than £8.5 million since 2000, taking into account the extra allocations made in March this year by my right hon. Friend the Minister for Children. That will pay for 14 new supervised contact centres in England—a welcome development that can be seen to be rooted in concerns about the safety of children.

It is also important to remember that the Children's Act sub-committee of the Advisory Board on Family Law reported on contact and domestic violence issues in 1999. CASC rejected a direct proposal to amend legislation to introduce a blanket presumption of no contact in cases of domestic violence on the grounds that it could not be applied while always putting the child's best interests at heart. Instead, it produced guidelines about how the court should deal with allegations of domestic violence in contact cases. The sub-committee promulgated those guidelines in April and May 2001, and as a result of a Court of Appeal judgment, the guidelines were partly incorporated into case law. They require that the courts should consider allegations of domestic violence at the earliest opportunity and decide whether the nature and effect of the violence is such that it is likely that any order of the court for contact will be affected. The guidelines require the courts to ensure that they are satisfied about the child and resident parent's safety before, during and after contact. I believe that that principle is robust and provides the assurance that hon. Members require.

That said, the Government recognise many of the concerns voiced by my hon. Friend the Member for Lancaster and Wyre. Hence, further new measures have been introduced since that sub-committee report. For example, from January 2005, we want to bring disclosure of allegations of domestic violence more to the forefront of cases. We continue to believe that there should not be a presumption of no contact but that allegations of domestic violence should be considered and findings of fact made before contact or residence decisions are made by the courts. From January, we will introduce a new form for use in applications under section 8 of the Children Act 1989. It will enable applicants and respondents in contact and residence applications to highlight more effectively allegations of domestic violence at the start of proceedings and for the court to make findings of fact before deciding on contact and residence applications.

Moreover, we recognise that it is not only physical violence that causes harm to children. As my hon. Friend the Member for Lancaster and Wyre said, witnessing violence against another person can have profound emotional effects on a child. That is why from January we will commence section 120 of the Adoption and Children Act 2002, which will strengthen the definition of harm by requiring courts to consider the damage to its health or development that a child may suffer from seeing or hearing about the ill treatment of someone else.

In summary, our measures provide the adequate assurance that hon. Members are seeking. They have the child's welfare as the paramount concern, and there are guidelines on how cases of domestic violence should be handled. We are making extra resources available for contact centres and introducing new systems to bring consideration of allegations of domestic violence to the forefront of proceedings. We also have the new definition of harm that the courts must consider. Together, those measures strike the right balance between ensuring the safety of the

resident parent and child and ensuring that, when it is in the child's best interest, he or she can have contact with both parents following separation. I realise that those are slightly different issues to those in new clauses 31, 34 and 13.

Turning to the points raised by the hon. Member for Romsey, the Government are not convinced that the new clauses are necessary as we believe that the existing procedures safeguard the welfare of the child. New clause 13, which the hon. Lady tabled, would put an additional duty on the court and the police where an application is made under section 34 of the Family Law Act 1986 for an order authorising an officer of the court to take charge of a child and deliver him or her to the applicant or a police constable. If the applicant has a residence order, the new clause would have the effect of establishing a presumption to return the child to the applicant after an alleged abduction by the other parent. If neither party has a residence order, the new clause is designed to place additional duties on the police and the courts before the section 34 recovery order can be made. I am afraid that all the new clauses disregard the requirements of section 34(1) of the Family Law Act 1986; indeed, they make no mention of them.

Section 34 states that before an order can be made for the recovery of a child there must be a part I order—usually a contact or residence order made under the Children Act 1989—or an order for the enforcement of that part I order, with time and place details requiring a person to give the child to the person concerned, which has not been obeyed. The section 34 order is a way of enforcing that original part I order when it has not been obeyed. Under the 1989 Act, when making any order concerning the upbringing of the child the court must have the welfare of the child as its paramount consideration. The court will have considered all the circumstances affecting the child's welfare when making the order that section 34 is intended to enforce. Although not all part I orders deal with residence, the court making such an order will have had an opportunity to look into any history or allegations of violence. New clause 13 is therefore unnecessary because enforcement cannot be triggered without a part I order being made. A section 34 application is not the place for rehearing the facts of the case; that is for the part I order hearing. If allegations of domestic violence arise after a part I order has been made, the parent making the allegations should properly go back to the court immediately and seek a variation of the order, not wait until an abduction has occurred to trigger measures regarding non-enforcement of the order. That is the proper way to proceed should circumstances arise after a part I order has been granted.

I appreciate that hon. Members who have tabled the new clauses have good intentions. As I have said, when a contact order has been made under the Children Act 1989, respondents have the right of appeal and can seek variation of the order. The court will consider any evidence of domestic violence, whether or not that is recorded in making its decision under the 1989 Act or in considering applications for variation. I explained earlier how

carefully the courts consider the welfare of the child when making orders under that Act, and how that is already set out in the framework and guidance under which they operate. Those are the appropriate ways to ensure that the child's safety is paramount and they are the best avenues through which to inquire after the child's circumstances.

The existing procedures under section 34 work effectively. The new clauses propose changes to address a problem that has arisen in a small number of cases. We are talking about the return of a child to an abusive parent using that section 34 procedure—the hon. Member for Romsey sought to illustrate that point in her example. The new clauses would require the police to make record searches and conduct inquiries into the welfare of the child. If the changes were made, the recovery of children whose return the courts had already ordered could be delayed. Such delay would be most unfortunate in the reverse circumstances of an abusive parent having removed the child.

The hon. Member for Romsey raised a number of points about ex parte orders, which are made in exceptional circumstances. By amending the Family Law Act 1996, the proposals also seek to restrict the making of ex parte residence and contact orders where the respondent to the application does not have the opportunity to attend court. That is not necessary or possible. What is more, such changes might not be in the best interests of the child where there is evidence that a party is wilfully refusing to attend court. The courts have developed strict guidelines on when ex parte orders should be made under section 8 of the Children Act 1989. For example, the Court of Appeal held in 1991 that it was undesirable for ex parte orders to be made except in the most exceptional circumstances, and then only on very strong evidence. An interim order of that kind would be followed as soon as possible by a hearing involving both parties, at which long-term orders would be made.

On the specific point raised in new clause 31 about the disclosure of the address of a refuge, I would be concerned if the rules to prevent that from happening were not already in place. I am advised that court orders for disclosure are dealt with under section 33 of the Family Law Act 1996 and that the amendment is not necessary. Anyone who does not wish to disclose their address is entitled not to do so under rule 10.21 of the family proceedings rules. The court will consider all the circumstances before making any order of disclosure that overrides a party's non-disclosure. A Court of Appeal decision has made it clear that the court should not order the police to disclose the location of women's refuges, so there is case law that prevents the disclosure of such information, and I do not believe that that part of new clause 31 is necessary.

These are complex matters, but the overriding principles are clear. We have sufficient strength in the part I order provisions to ensure that any history of abuse or domestic violence can be considered in a

case. The section 34 enforcement procedure can take place only where that part I order has already been made.

In respect of the other new clauses, although I understand the points that my hon. Friend the Member for Lancaster and Wyre made, we have to strike the right balance in ensuring that there is contact where possible, in a scenario that is safe for the child and for the child's parents and family, before, during and after such contact. The arrangements that we propose strike the right balance. With that, I hope that the motion will be withdrawn.

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful for my hon. Friend's response. I am pleased about his support for the principles of the Children Act 1989, with which I fundamentally agree. However, the problem is that the paramount principle of the 1989 Act, which is that all decisions should be made in the best interests of the child, has been compromised by case law and is being compromised by the judiciary's decisions.

I am talking not only about the re O case from 1995, to which I referred earlier, but about the re H and R case of 1995, which set out a higher standard of proof where allegations of sexual abuse against children are concerned, and the re AvN case of 1996, which set out that the welfare of the child is not paramount in the case of committal proceedings. We have a serious problem with the way in which the judiciary is interpreting that fundamental aspect of children's law in a strong media environment in which genuine concerns about children who have lost contact with their parents for various reasons are being brought to the fore, but also being misapplied to circumstances in which the protection of children needs to be emphasised over and above everything else.

My hon. Friend also does the Committee a service by setting out the clear messages in ''Safety and Justice'' about the investment that the Government are making in contact centres—it is welcome, worth while and important, but it is still not enough, because we do not have effective coverage across the country—and the work that is being done on new forms and guidelines. However, the issue is more significant than that.

In ''Safety and Justice'', the Government say that they would welcome views on whether the arrangements provide the right level of support and safety for all family members. They ask those who think that they do not do so what else should be done. The answer contained in the new clauses does not come from me; it comes from Women's Aid, the NSPCC and a plethora of other organisations that are concerned with these issues and want things to be put right.

I genuinely believe that my hon. Friends have fallen into the trap of holding the ring between what they see as the competing and perhaps equal interests of those who emphasise the benefits of shared parenting and those who emphasise the importance of safe contact. That is not an equal contest. Safe contact is imperative. I am at one with my hon. Friend in wanting there to be excellent contact arrangements for

all children. No one wants to stop contact arrangements—even those between children and violent and abusive parents—where the child wants to have contact with the parent, but we know from deaths and abuse of children during contact visits that it is imperative that we improve the situation.

I apologise for any embarrassment that I may cause to Labour Members, because I have the greatest respect for my hon. Friends, but I am prepared to press new clauses 32 and 33.

Dominic Grieve (Conservative, Beaconsfield)

I have listened carefully to the debate and I am grateful that it has taken place. I have also listened with great care to the words of the hon. Member for Lancaster and Wyre; in due course, he might press the new clauses, as he has suggested.

As a result of listening to the debate, it seems to me that there is a distinction between new clause 8 and new clause 33. They are aimed at achieving slightly different things. The Minister has persuaded me that it is undesirable to be as prescriptive as these proposals are, particularly in respect of new clause 33, which would effectively deny a party who had been involved in any act of violence—in the break-up of a marriage, for instance—the possibility of having contact or residence with their child. That is going too far.

I have had professional experience as a barrister of marital and relationship breakdown, in which people act in ways that they subsequently regret. If their behaviour is wholly out of character and is not particularly directed at the child, but at another person, to say that there is effectively an entire presumption against there ever being residence is to lay down a rule that could turn out to be harmful to the child concerned.

On the checklist, I was partially reassured by what the Minister said. At the same time, it strikes me as an innocuous addition, but he considerably reassured me about how the courts are operating. I therefore beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Marion Roe (Conservative, Broxbourne)

Do I understand correctly that you wish to press your new clauses later, Mr. Dawson?

Hilton Dawson (Labour, Lancaster and Wyre)

Yes.

Marion Roe (Conservative, Broxbourne)

They will come after new clause 22.New clause 17 Register of Orders

New clause 17 - Register of Orders

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move, That the clause be read a Second time.

If we are going to vote on the previous new clauses, I had better be brief in introducing this one, which returns us rather neatly at the end of our proceedings

to clause 1 and our discussions about the breach of non-molestation orders. If the procedure is to be effective, the police must have a mechanism by which they can know what orders are in place and therefore when an offence is committed. Otherwise, they could not possibly effect an arrest or thereby set in motion criminal proceedings. From my interpretation of what was said in another place, the Government have already conceded that point, but I hope that the Minister will tell us exactly what is proposed.

My noble Friend Lord Thomas of Gresford tabled a similar amendment in another place requiring that a register be drawn up for each police force. Baroness Scotland of Asthal rightly replied that that would not necessarily be the most helpful process. Anyone who has examined the Bichard inquiry would conclude that national rather than local databases are more likely to be effective. If people move between police authority areas, their previous history will be completely unknown in the area to which they have moved. I have tried to table a new clause that requires the creation and maintenance of a national register of orders, to which each court would be required to send a certified copy when an order is made so that it can be complete and readily accessible to police constables.

During the previous debate, in which I did not participate, one of the arguments advanced by the Under-Secretary was that it would take an inordinate amount of time to discover whether there were circumstances that would inhibit the making of a contact order. The register would help in that regard. If we had the register, there would be no reason for an inordinate delay; it would be extremely helpful for everybody concerned. He has therefore provided me with an additional argument in favour of my proposal.

I am sure that the Minister will not accept my new clause—that is the way of the world—but I hope that he will say that it is the Government's intention to create a national register. Indeed, that was the implication when Baroness Scotland suggested in another place that the Government intended to create a single database of orders. She also suggested that the creation of a register does not need to be a matter for primary legislation and therefore need not be included in the Bill. I accept that, but I argue that it would be better done through primary legislation. The Government have taken that view on other occasions. Indeed, I recall that section 98 of the Courts Act 2003 requires a

''Register of judgments and orders etc.''

to be created and maintained.

If it is right to have a national register of judgments and orders to try to ensure that fines or administration orders are maintained, it is more important to have the register that I propose, which is for the protection of vulnerable people. I hope that the Government will, first, confirm that they will produce such a database; secondly, tell us who will do it and how it will be arranged; thirdly, indicate the time scale in which it will be provided; and, fourthly, tell me why it is not helpful for the Bill to refer to it, as it seems entirely pertinent to its intentions and would make it work that much better.

Robert Walter (Conservative, North Dorset)

I support the new clause because I, too, think that it should be included in the Bill. The indications from the Government are that they are minded to create a register of the sort that is proposed, but that they do not see the necessity of putting it in the Bill. The register should feature in the Bill, because that will send a message to those who will administer it that Parliament thinks that it is important.

The mechanisms for setting up a register are probably not too difficult to come by. There are registers of county court judgments, which are easily available to those who want to provide credit. The proposed register could be easily brought into play, and I support what the hon. Member for Somerton and Frome said: it is important that the proposal is included in the Bill, even if the Government believe that they will introduce it anyway. Accepting the new clause would send an important message.

Paul Goggins (Labour, Wythenshawe and Sale East)

I hope that my brief remarks will reassure the hon. Members for North Dorset and for Somerton and Frome and persuade them that the new clause is not needed.

When the Bill was in the other place, my noble Friend Baroness Scotland explained that the Government are already working to create a register of orders. The register's purpose is to ensure the proper enforcement of orders, and it does not require primary legislation. The register will deal with a problem that was raised in response to the ''Safety and Justice'' consultation paper on domestic violence—if someone protected by an order travels to a different area and the respondent pursues them and breaches the order, the police in that area will not be aware of the existence of the order or its terms. A central register would give all police forces access to information about orders and the ability to enforce them wherever a breach occurs.

Our current plan is to create a database that is linked to the police national computer, which would fulfil the new clause's objective of ensuring that information on the register is readily available to all police officers. We have had discussions with the Police Information Technology Organisation, which we expect to submit an outline business case and specifications, I hope by the end of August or at the latest early September.

In respect of subsection (2) of the new clause, rules of court already provide for courts to send copies of non-molestation and occupation orders to the police, and we intend to consider revising the rules to clarify those obligations. Using primary legislation to place the courts under a statutory obligation to provide such documents is therefore unnecessary. The question should not be whether the proposal is included in the Bill; what really matters is that it is put into practice—something that the Government firmly intend to do as a matter of priority. I hope that the Committee is reassured by what I have said.

David Heath (Liberal Democrat, Somerton and Frome)

On the latter point, I entirely agree with the Minister. The most important thing is that we have the proposal, not whether it is in the Bill. I am

encouraged by what he said about the work that is already going on. We shall see whether PITO delivers, but we must hope that it will do so.

I would not underestimate the difficulties of establishing the initial database. It is no good if it starts from its day of creation and is not retrospective in terms of extant orders. I wonder how much thought has been given to the difficulties of ensuring that we have a comprehensive database of current orders from day one. However, if the register is a good idea and the Government are going to introduce it, I do not understand why there is reticence about including that intention in a part of the Bill where it makes so much sense for it to be clearly stated. Plenty of other registers are referred to in Acts of Parliament, without any need for such reference other than because the Minister at the time, on advice received, thought that it was a good idea to make it clear that they would be created and maintained. This register is apparently in a secondary tier of importance, which does not require it to be stated in a statute. I do not accept that, and I do not think that the Minister accepts it. However, I am happy to take his assurances at face value.

Like me, the Minister knows that this part of the Bill will work only if the register is operational. The police know that, too. The Police Federation supports the position that he and I are adopting. It is regrettable that the register is not made explicit, but I am more concerned that it is established in due course. I would be grateful if he kept me advised of progress during the coming months, because it is important that we watch to ensure that what is promised is delivered. As he knows, it has not always been the case in police IT that what is promised has been delivered.

We are entitled to be cautious, which is why I should have liked something written into the Bill. However, in light of what the Minister said, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 22 - Definition of manslaughter

Vera Baird (Labour, Redcar)

I beg to move, That the clause be read a Second time.

The new clause would redefine the defence of provocation and the matters concerning some 100 men a year who kill in the course of domestic violence and around 30 women a year who kill their violent partners. Many of the men and women who are charged with such killings run the defence of provocation to try to prevent themselves from being convicted of murder and to ensure that they face only a manslaughter charge, freeing them from a life sentence.

In the defence of provocation, the defendant says that the killing was done only because of a sudden, temporary loss of self-control provoked by something the victim did or said, and that it happened in circumstances in which a reasonable person would have reacted in exactly the same way. The point of that defence is that although the defendant has killed, his blameworthiness for over-reacting is mitigated by the provocation from the victim. In the first instance, the defence required that the provocative conduct should be wrong, because if the killing is mitigated, it does not make sense if the provocative conduct was something that a victim was entitled to do. However, the provision that it has to be wrong conduct has died away. One man was acquitted of murder and convicted only of manslaughter by provocation when he claimed that a baby crying provoked him.

In recent years, there have been domestic violence cases in which women have been killed and men have said that they were provoked to lose their self-control when the woman nagged. For one man, the final provocation was the way in which the woman moved the mustard pot across the table. In another case, a defence of provocation succeeded where a man had killed his wife because she told him that she was thinking of leaving him to go off with her gym trainer.

We have to remember that there are two parts to the defence of provocation: a person has to show not only that they lost their self-control because they were provoked, but that a reasonable person might have reacted in the same way. Surely, killing a partner for moving a mustard pot is not the behaviour of a reasonable person.

How did it come about that men have been acquitted of murder for that kind of killing? The culprit is the House of Lords—not the legislative, but the judicial body—in the case of R v. Morgan Smith in 2000. It said that when considering whether a reasonable person might have reacted to provocation as the defendant did, one should take into account all the characteristics of the defendant. There is a spark of sense in that; if one were considering a 15 year-old who lost his self-control, it would be very hard to judge him by the standard of a reasonable person who was fully

mature. Obviously, self-control is more easily lost by a 15 year-old, so one would have to attribute the defendant's age to the reasonable person when checking whether his response had been reasonable.

However, the Morgan Smith judgment said that one had to attribute all the defendant's characteristics to the reasonable person, which would include any characteristics that might lower his standards of self-control. When considering that second test, one had to consider a person's alcoholism or bad temper, and attribute those characteristics to the reasonable person when asking whether such a person would have reacted as the defendant did to the provocation.

If one attributes all the bad characteristics of the defendant to the reasonable person, the defendant is changed into the reasonable person and there is no second question to ask. The question is whether the defendant lost his self-control and whether that happened because of something that the woman said or did, whether right or wrong. That is all that is left as the test to decide whether somebody should be convicted of murder or manslaughter in such situations.

We are concerned here with domestic violence killings, and women also kill men in domestic violence situations. However, it is clear from experience and well recorded data that, typically, a man kills in a domestic violence situation from anger and sexual jealousy and a woman kills because she has been attacked yet again and battered before, and her not having done so from anger does not really fit the sudden loss of self control model of provocation.

Usually, the woman is under attack and she runs away, usually into the kitchen. She turns around as the man comes at her, sees something to defend herself with and stabs him with a kitchen knife. That is the usual thing. There is no defence of killing out of fear and despair that accommodates battered women as provocation accommodates men who kill out of anger. One might think that running into the kitchen, turning around when under attack and killing would be self-defence, but self-defence has to be proportionate to the scale of the attack to be a defence. If the woman is attacked only with a fist or boot and takes a knife and kills her attacker, the jury will not say that that is proportionate and will not acquit her on self-defence.

Disproportionate self-defence—self-defence that goes too far—sustains a conviction for murder, not manslaughter. So if I overreact to provocation in an angry way, as men do, I will be convicted only of manslaughter, but if I overreact to an attack and go too far in self-defence, I will be convicted of murder.

Women who kill by striking back after running from an attack are now defended on two bases. First, the defence can argue that because of her fear, the killing was done in proportionate self-defence. However, she will then fall back on to all that is available—provocation. She must say that she underwent a sudden and temporary loss of self-control because of the provocation of the attack on her and that she lashed out in circumstances in which a reasonable person would have done the same. The trouble is that self-defence—the first defence that

anyone would run—must be proportionate, which suggests control and measurement in the riposte of force, but that provocation is about a sudden and temporary loss of self-control and striking out, which is a disproportionate act. The two are inconsistent.

Dominic Grieve (Conservative, Beaconsfield)

Is not the nub of the problem that there is no such thing as proportionate self-defence that reduces murder to manslaughter? I have always seen that as the real mischief. Surely, the truth is that a person often has a legitimate ground to engage in self-defence, but oversteps the mark and faces the full force of the law.

Vera Baird (Labour, Redcar)

Yes. I believe that I have said that already. It is odd that if someone overreacts to provocation, they are convicted only of manslaughter, but if they overreact to an attack on them and go too far in self-defence, they are convicted of murder. There is no doubt that that is inconsistent.

David Heath (Liberal Democrat, Somerton and Frome)

Is there not a further complication in British law: the mandatory sentence for murder? If we took a different view of the appropriateness of the mandatory sentence, we might not need those partial defences and someone could be sentenced appropriately for unlawful killing—murder—taking account of the circumstances.

Vera Baird (Labour, Redcar)

Of course there is a major issue surrounding the survival of the mandatory life sentence and whether it is desirable. There are arguments both ways. One is that it is better for a jury to decide culpability by having a sequence of offences into which it is possible to set the conduct of the offences rather than just saying that killing is killing and leaving the matter to a professional judge, but there are arguments the other way. There is no doubt that the hon. Members for Beaconsfield and for Somerton and Frome have put their fingers on difficulties. The difficulty raised by the hon. Member for Beaconsfield would be dealt with by the proposal.

To return to my battered woman who has turned on her husband, she is now in the position of having said that her response was proportionate and measured, but is thrown back to saying that it was disproportionate and unmeasured because she lost her self-control through provocation. Both those defences often fail catastrophically because they are inconsistent, and the woman is convicted of murder in the absence of any other port of call for the jury. The jury can often see that provocation did not apply and that she did not suddenly lose her self-control and strike out like the man whose wife moved the mustard pot. She was frightened and overreacted out of fear, but that is no defence at all.

The position in the two stories that I have told of the two kinds of domestic violence murder is that, at the moment, violent men who lose their self-control get away with murder and battered women get convicted of murder. The Government are well aware of the problem, which is about treating gendered and different reactions equally. The Government asked the Law Commission to report

with dispatch with a view to changing the law on provocation in the Bill wherein the domestic violence aspect conveniently lies. The Law Commission has made proposals to improve the provocation defence not only for domestic violence cases, but across the board. Those proposals were well received by most of the senior judiciary, academics, the Fawcett Society, Justice for Women, Rights of Women, Southall Black Sisters and Women's Aid—in short, by all the organisations representing both victims of domestic violence who have been killed and those who defend battered women who have killed.

Briefly, under the proposal murder would be cut to manslaughter considering provocation only if the defendant acted in response to gross provocation—a much higher test—that caused the defendant to have a justifiable sense of being seriously wronged. That means that the original requirement that the provocative behaviour had to be wrong behaviour is restored. The jury, not the individual, would decide whether the defendant had a justifiable sense of wrong, but the two changes mean that the mustard pot is out as provocative conduct. It must be something that is completely wrong, not something that the individual feels might mitigate his loss of control.

Dominic Grieve (Conservative, Beaconsfield)

I agree that the mustard pot is an extreme example. My recollection of that case might be at fault, but I seem to recollect that there was a long history preceding the moving of the mustard pot of all sorts of acts that involved domestic violence in certain instances, which had been treated with complete forbearance by the assailant, who snapped over the moving of the mustard pot. That was why the defence was run in that way. One must be careful about the facts of what constitutes the final break in the provocation if a long history can explain why something that appears to be totally trivial—to any reasonable person, extraordinarily so—is nevertheless properly the foundations of such a defence.

Vera Baird (Labour, Redcar)

I do not know whether the hon. Gentleman is right about those facts. I would be pretty satisfied that it is likely that over the years there was more to it than the mustard pot but, under this new provision, that individual would have to show that what had happened, whether or not it was on the same occasion as the cruet incident, was gross provocation. That is a much better test than something as small as that and the other examples that I gave.

Those are the two first changes that would restore provocation to where it was in the first place—at a high level before anybody, even partly, is justified in losing their temper and striking out, and only if the conduct was wrong, as considered by the jury. The second test—whether a reasonable person would have reacted to gross provocation in the same way—is also restored. Although it is still necessary to impute the defendant's characteristics to the reasonable person, one does not impute to the reasonable person any characteristics of the defendant that operate only to lower the defendant's self-control. There would therefore be no bad-tempered and alcoholic reasonable person. There would be a proper check of whether the behaviour of the individual in question

was reasonable according to the ordinary standard of self-control to which we are all accustomed.

That is how provocation would be rejigged. On the other hand, the provision would help battered women who kill because manslaughter, not murder, would be the offence if the killing had been carried out in fear of serious violence. That would include the woman in a kitchen who over-reacts and cannot merely call it self-defence in a balanced way, but who acted out of fear of serious violence and in so doing went beyond self-defence. It is, in a sense, disproportionate self-defence: as the hon. Member for Beaconsfield said, the new clause would introduce a missing link in available defences.

Consequently, a man or a woman justifiably feeling that they had been seriously wronged who killed when somebody with ordinary self-control would also have been driven to killing would have a defence. A woman or a man killing under serious fear of violence would for the first time have a defence that would allow them to be convicted only of manslaughter. That recognises both gender's reactions and treats them equally. It would redress the imbalance that has emerged from the recent atrophy of the provocation defence, which has given rise to injustices. Academics are satisfied that it would improve the law that deals with domestic violence killings of both kinds and, more importantly, it would improve the law of provocation consistently across the board.

The real point is that the examples of injustice that I have pointed out make it quite clear that such injustices are occurring daily. There are about 150 domestic violence killings of one kind or another each year. It is important to change the law soon. We now have a perfect model, or as good as dammit, brought about by a request from the Government to the Law Commission, which carried out a quick but thorough wide consultation and produced draft proposals and is now perfecting them as per the draft. The model is there for the taking as requested by the Government, it is in new clause 22 and I would like the Government to take it.

David Heath (Liberal Democrat, Somerton and Frome)

I am pleased that the hon. and learned Lady has had the opportunity to table this proposal for debate. My only regret is that I may not hear the Minister's response, because I fear that I may be heading back to Edinburgh to continue my parliamentary duties before he gets a chance to respond. However, I want to make a very short speech, if I may.

First, there is clearly an issue about the law. It is commonly held that there is a difficulty in the law of provocation, and there is an equal difficulty in finding the solution to it. I commend the Law Commission's work, because I think that it has done an extraordinarily good job in a very short time.

Secondly, the Law Commission identified a difficulty, and it put it far better than I could. The fact is that the present law is unsatisfactory. On the one hand, it is too broad. In the commission's own words:

''It is morally offensive to regard as 'provocation' conduct by a victim which in truth calls for society's protection''

and it gives the examples of

''the crying baby, the court official seeking to enforce a court order, or a person in an unhappy relationship who is seeking to leave.''

However, it goes on to say that the law is also too narrow and:

''It affords (at least if strictly enforced) no defence to a person in an abusive relationship who acts in genuine fear of serious violence, unless the danger is imminent or they are acting under sudden and immediate loss of self-control.''

Those are precisely the points made by the hon. and learned Member for Redcar.

As I said when I intervened, I think that a lot of the problems stem from our mandatory sentence for murder. That is something that no one is ever prepared to consider seriously because they say, quite rightly, that murder is a uniquely culpable crime. Nevertheless, they are not prepared to take into account that that crime can be committed in hugely varying circumstances. A court does not have discretion in sentencing at the moment. That seems to be the problem, because it means that we have to have slightly artificial concepts in order to provide for the circumstances surrounding the commission of an act of murder so that a court can take proper account of those circumstances.

In the absence of removal of the mandatory sentence and therefore the avoidance of the necessity of the provocation defence, we have a proposal from the Law Commission that I think has a lot of merit. The hon. and learned Lady will agree that what has been tabled is more of a description of what the Law Commission intends rather than something in statutory form. The commission would readily recognise that as well. The measure needs refinement before it can be entered into statute, but the most important thing is to hear from the Government whether they are entertaining the idea behind it. Did they ask the Law Commission to do the work and propose to take notice of what it said, or is it aborted work to some extent?

The hon. and learned Lady has done a great service to the Committee in introducing this measure. I shall listen carefully to other contributions and the Minister's response, and I hope that we shall have the opportunity to debate the matter more fully on the Floor of the House.

Dominic Grieve (Conservative, Beaconsfield)

I, too, welcome the hon. and learned Lady's decision to table the new clause for our consideration, and I look forward to an early opportunity—once the Law Commission's perfected report is available—for us to consider what I hope will be a short piece of legislation to introduce changes to the statute book.

I share the hon. and learned Lady's commitment to trying to achieve a change to the present law. Considering what has been introduced, some of the areas that she touched on do not appear to me to be quite as straightforward as the interpretation she placed upon them. I shall identify three areas that we can consider later—I suspect that we shall not deal with the matter today.

First, I share her concern that provocation may be used as a catch-all excuse to get men who murder women off the hook of a murder charge. However, when changing the law of provocation we need to be careful not to exclude a situation such as the example I gave earlier of long, persistent, emotional abuse—and sometimes physical abuse—ending with what can appear to be a trivial incident from the equation of changing a charge of murder to manslaughter. There are circumstances where such a history ought to provide a defence.

The hon. and learned Lady raised an example relating to women being killed by men—it can apply the other way around, and I think that she accepts that—where a woman has a fear of persistent violence and therefore acts to protect herself. Equally, I suggest that there may be instances where the emotionally put-upon partner, who is dominated and abused over a long period, snaps because of something quite trivial. In those circumstances, I am not persuaded that they should be deprived of the opportunity to use the defence of provocation if they can show that something is the end product of an accumulation of events, not a trivial or minor event that could not sustain that defence on its own. It is an area on which I have an open mind, but it we shall have to consider the matter carefully when we come to legislate.

My second point relating to the question of the woman's defence, as it was put by the hon. and learned Lady, concerns the fear of serious violence towards the defendant or another. I have a great deal of sympathy with what she said, but I reiterate that part of the problem in this area is the lack of recognition under English law of excessive self-defence without provocation as a partial defence to a murder charge. That has always troubled me. The classic example falls right outside the category of domestic violence: the Martin case. We eventually got a manslaughter conviction on the basis of diminished responsibility when it seemed to me that there ought to be have been an opening for manslaughter conviction on the basis of excessive self-defence that fell short of murder. That is an example of how the Court of Appeal found a way round the problem. It is another area that we must consider.

Although I am extremely sympathetic to the change that the hon. and learned Lady has proposed, I do not think that this Bill is the place to do justice to what would be an important change to the law. In any event, it is clear that the other place, where the Bill was initiated, is in no position to do justice to any amendment that we might pass here. For those reasons, I feel that it must be put off for another day.

I have no idea what the Government's future programme is, nor do I know at what stage they are going to hit the buffers of another general election. However, the Minister would certainly have the Conservatives' co-operation if the Government chose to introduce a Bill to change the law on murder, along the lines of the preliminary report of the Law Commission. I have an open mind as to how we might go about that and what the final details would

be. It would need a lot of vigorous debate and careful scrutiny. I am grateful to the hon. and learned Lady for having raised the issue and I would like to be able to pursue it. However, that will take longer than we have now.

Paul Goggins (Labour, Wythenshawe and Sale East)

Like others who have spoken, I am indebted to my hon. and learned Friend the Member for Redcar for tabling the new clause and speaking to it so ably.

My hon. and learned Friend, I and one or two others were involved in a similar debate a few days ago. It is important that the attention of the House is drawn to the issues that she has described. She will know that the Government fully share her concerns about the way in which the law on homicide currently operates in relation to domestic violence cases. In particular, we understand her concern that recent developments in the law have led to an extension of the scope and availability of the partial defence to murder of provocation, well beyond what was envisaged in section 3 of the Homicide Act 1957. Those developments have allowed for a subjective test for provocation based on the defendant's characteristics, rather than the more objective test of what a reasonable reaction to the provocation would be, as she so eloquently explained.

Of course, sexual jealousy, however much it might enrage the person who suffers from it, should never be accepted as a justification for killing someone, and neither should infidelity be an excuse for taking someone's life, however devastating it might be for the individual affected. There is also a deep worry that current sentencing in relation to manslaughter by reason of provocation in cases of domestic violence homicide does not adequately reflect their seriousness and the loss of life involved.

Dominic Grieve (Conservative, Beaconsfield)

I hope that the Minister will not consider this a flippant intervention, but I am interested in his comment that sexual jealousy can never justify homicide. Of course it cannot do so, but in many other European jurisdictions, it is defined as a crime of passion and attracts reduced sentences.

Paul Goggins (Labour, Wythenshawe and Sale East)

Yes, and that is not something that this House would agree with. None the less, I am grateful, as ever, for the hon. Gentleman's contribution.

I want to consider briefly what the Law Commission proposes in the wider context of homicide. I can say to my hon. and learned Friend and to the whole Committee that, at first glance, the proposals have some attractive features. They would, however, represent a major change in the way in which the law works. Currently, provocation provides an excuse for homicide—an offender who has killed can be partially excused because he lost control. Under the Law Commission's proposal, the killing would be deemed partially justified in certain circumstances, as described in my hon. and learned Friend's new clause. That is a significant change that could have far-reaching ramifications. We need to consider carefully how the proposal would work in practice not only in the context of domestic violence, but in other circumstances. For example, it could be argued

that some gangland killers would meet the criteria set out in the new clause.

We need more time to think through the full implications of the proposals; it would be dangerous to adopt such a major change too quickly. I appreciate my hon. and learned Friend's desire for stronger legislation and greater protection for victims of domestic violence. The Government share that view, but we think that it makes sense to await the Law Commission's final report. We will, of course, think carefully about its recommendations before we consider taking legislative action. We need to check all the intended consequences of the proposed changes and to identify any unintended consequences. I warmly welcome the positive indications from both Opposition Front-Bench spokespeople that they would constructively engage with the Government if we were in a position to advance proposals for legislation on this matter.

The Law Commission is still working on its final report. Several groups have strongly welcomed its proposals, although areas of particular concern have also been identified. We must ensure that the Law Commission has the time to complete its work and to analyse all the responses. Its thorough analysis will be crucial in helping us to clarify our understanding of the issues involved. We need a solution that strengthens protection, commands public confidence and works in practice. We have a process in train and we will be better served in the long run by taking a little more time to get things right rather than attempting a partial solution that may give rise to further questions and difficulties in the future.

In that spirit, I urge my hon. and learned Friend to seek to withdraw the motion.

Vera Baird (Labour, Redcar)

I am grateful to the hon. Member for Somerton and Frome, who is not in his place—I accept that he cannot be there—for acknowledging that the new clause is a serious and successful attempt by the Law Commission to meet the twin problems that domestic violence killings throw up. I sympathise with his approach to the mandatory life sentence and the need for us all to consider that seriously in due course.

The hon. Member for Beaconsfield made two points—I accept that they are probably not the only ones that he could have made—about whether the provision is capable of providing for a last-straw, relatively small incident against a background of smaller incidents that have built a person up to such a crescendo that they snap, as he put it. I am assured that the proposals embodied in the new clause will not change and that the consultation is almost complete, the drafting of the final report is on its way and there will be no significant change. That is very clear from the Law Commission's provisional consultation and current report, and I entirely accept that the new clause has been picked from a section of its report that was put into bold type to set out the principles that the new clause embodies, and that it is not a model section and no doubt would have merited the attention of a parliamentary draftsperson.

I understand that the proposals will not change. They are intended to cope with a long abusive relationship and the last-straw break in self-control. It is significant for the issue that has been raised by the hon. Gentleman that the words ''sudden'' and ''temporary'' have disappeared. Originally, provocation required a sudden and temporary loss of self-control, which implied a sort of snapping. It used to be down to the work of a large amount of case law to count what had happened back to earlier provocation that had contributed to the build-up. The words ''sudden'' and ''temporary'' have now gone, so the picture is clearly opened up to whatever gross provocation there was, whether it happened today, yesterday or earlier. The hon. Gentleman therefore does not need to worry very much about that.

The hon. Gentleman said that he had always thought it a lack that there was no defence of excessive self-defence that reduced murder to manslaughter. In effect, I do not see a significant difference between excessive self-defence and the limit of the defence of fear of serious violence, if that was the motive, which reduces the charge to manslaughter. The jury will have to consider first whether what happened was self-defence and, secondly, if it went too far to be self-defence, whether it was caused by a fear of serious violence. If so, the offence would be manslaughter only. That seems to me to be excessive self-defence.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Lady may be right. One of my difficulties is that I have not been able to give the matter the time and attention that it deserves. I have read the Law Commission's report and her new clause, but we must examine the new clause literally word by word and work out the various possibilities and permutations that flow from it.

Vera Baird (Labour, Redcar)

With that, I turn to the comments of my hon. Friend the Minister. I have heard them before, as he has heard my remarks before, in an Adjournment debate, but there we are; they are no worse for repetition. I was puzzled then, as I am now, about why he thinks that there is a move from an excusatory model to a justificatory model. As I understand it, both are both. The justification is the provocative conduct and the excusatory aspect is that the person lost their self-control. Both elements are present in the old model and the new model; there is no change.

The Minister is not alone in this view—I think that the Attorney-General shares it—but I have never understood why a gangland killer could plead the defence of fear of serious violence. Such a fear would not, in the view of any sensible jury, qualify as something that caused the defendant to have a justifiable sense of being seriously wronged. The Minister's argument is not tenable once we consider in more detail the extras over and above just the fear of serious violence.

The model is a good one and it will not significantly change. Of course, persuaded by the ever-persuasive Minister, I shall seek to withdraw the motion, but we

should return to the new clause as quickly as possible, because injustice is being caused. The new clause is a recipe for remedying that, and all we need is another opportunity to peruse it thoroughly and to embody it in legislation. I hope that that can occur, but at this stage I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Schedule 1 - Unfitness to stand trial and insanity:

New Schedule 2 - Powers of authorised officers

New Schedule 3 - Procedure on breach of community penalty etc

Title

Paul Goggins (Labour, Wythenshawe and Sale East)

On a point of order, Dame Marion. Our proceedings are almost at an end, and I do not want the moment to pass without making a few remarks. I hope that you will forgive me for doing so. On my own behalf and I am sure on behalf of the whole Committee, I offer warm thanks to you for the way in which you and Mr. Benton have chaired our proceedings. You have done so effectively, but also with sympathy, which is much appreciated, particularly given the issues that we have discussed.

I also extend thanks to our Clerk, Mr. Cooke. I hope that he will forgive me for sharing this little secret with other members of the Committee: he has a young boy, Oscar, who I think is five or six months old and wakes him as a human alarm clock at five o'clock every morning. The fact that he has managed to stay awake during our proceedings has therefore been impressive, but he has done far more than that. He has been a very effective support to a number of hon. Members who wanted to discuss matters with him. We are very grateful to Mr. Cooke.

We are also grateful to the Hansard writers, who have been as diligent as ever.

I extend particularly warm thanks to the Bill team, who have been an effective support to me and to any hon. Member who has approached them for more information or explanation.

I thank all the voluntary organisations and other bodies outside this place that have helped so much to inform our deliberations by suggesting amendments, producing briefings and bringing their experience to bear in our debates. That is a very important part of the parliamentary process.

I thank the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Shipley (Mr. Leslie), and my right hon. and learned Friend the Solicitor-General for their effective support and the work that they have done.

I am indebted to the hon. Member for Chesham and Amersham for the way in which she has approached our debates. Her concern in these issues has been evident throughout everything that she has said, and I do not think that any of us will hear a stray mobile phone ever again without reflecting on our proceedings here.

I thank the hon. Member for Beaconsfield for his usual forensic and thoughtful approach to all the issues. I also thank the hon. Member for Romsey and the hon. Member for Somerton and Frome, who is even now hurtling up on his way to Edinburgh. He will always remind me of courts martial, if nothing else, as a result of these deliberations.

To the hon. Member for North Down (Lady Hermon), I can say that her championing of the cause of the people of Northern Ireland has been deeply impressive throughout. Perhaps I may beg her for one last time to accept that I share her aspiration

but that we have a different route, and I ask her again to understand my position on that.

I thank all my hon. Friends who have contributed. There has often been as much of a challenge from my side of the Committee as from elsewhere in it, and I applaud and welcome that. My hon. Friends all speak with a breadth of experience and understanding of these issues, and in many cases from years of campaigning on them. Their contact with those issues at the sharp end has been evident in everything that they have said.

I thank the Whips, particularly my hon. Friend the Member for Nottingham, East (Mr. Heppell), for keeping us always on the ball and pretty well on time, and I thank my hon. Friend the Member for Colne Valley (Kali Mountford), who provides far more than bits of paper in support of the Minister. I am very grateful indeed to her.

Our proceedings have been constructive, thoughtful and an attempt to find real solutions. So often in the past, domestic violence and the victims of that crime have been hidden in our criminal justice system. In our scrutiny of the Bill we have helped to raise the issue's profile and, more importantly, to shape some solutions.

Finally, I say to all members of the Committee that we have listened carefully to the debate. I hope that the fruits of that listening will be evident on Report, but in the meantime, I thank everyone for their contribution.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Further to that point of order, Dame Marion, I do not think that I could make any more charming summation of our proceedings than the Minister has done, so I shall not attempt to do so. However, I should like to include in the thanks the Doorkeepers and the police who keep us safe and secure in the Committee. I should also like to thank, for my part, my colleagues. I look forward to Report and Third Reading.

Sandra Gidley (Liberal Democrat, Romsey)

Further to that point of order, Dame Marion, I do not wish to repeat everything that has been said, but I should like to add my name to the sentiments expressed. I particularly thank the Minister for keeping us all so well informed, which makes a difference when working on a Bill. There are some minor frustrations in seeing the reversal of everything that happened in the other place, and only one small change has come from the Opposition Benches, but on the whole I have been very impressed with the way in which Members on both sides have worked together, and I hope that that spirit continues.

I wish the hon. Member for Chesham and Amersham the best of luck with mobile technology, and hope that she does not suffer any future disasters.

Marion Roe (Conservative, Broxbourne)

On behalf of my co-Chairman and myself, I thank the Minister for his kind remarks.

Bill, as amended, to be reported.

Committee rose at eight minutes past Five o'clock.