Baroness Hamwee:

Moved by Baroness Hamwee

11: Clause 12, page 7, line 13, leave out “and not more than ten”Member’s explanatory statementThis Amendment would remove the upper limit for members of the Commissioner’s advisory board.

My Lords, like the noble Baroness, Lady Lister, I feel a sense of frustration. There are so many issues that one wants to pursue, but it is not the first Bill where we will experience that. In Committee, we had a series of amendments regarding the role of the domestic abuse commissioner. Almost all of them were concerned with ensuring that the job is not so constructed as to preclude the commissioner making her own decisions on how to go about her work. I put it that way to distinguish it from the content of the work.

The noble Lord, Lord Rooker, put it very succinctly. He said that the whole thrust of certain clauses is a worry because it appears that the Secretary of State wants to pull all the levers. Our debates largely boiled down to the commissioner’s autonomy. I did not entirely follow the assessment of the noble Lord, Lord Parkinson; he said that our amendments focused on independence but then set about how the commissioner should fulfil the role. Independence was a particular focus on this part of the Bill, although naturally noble Lords had been keen to draw attention to a variety of issues. That tension has been a bit of an issue today, of course, but that is perhaps by the by.

Independence is a hugely important component of the role. The Government have been arguing today that that is so in resisting some amendments; they certainly did that in Committee. It is a component, as far as possible, given that the commissioner’s position is that of a statutory officeholder funded by the Secretary of State with no separate legal persona. The framework agreement between the commissioner and the Secretary of State will be very important in this regard.

As well as the commissioner’s freedom to select her own staff—following due process, of course—in Committee we had quite extensive debate about the advisory board. Different noble Lords argued for members of the board with particular backgrounds and experience. The Bill provides for at least six members and spells out whom each of the six is to represent. I have to say that the term “represent” still troubles me. I think there is a danger of muddling representation and advice. The maximum under the Bill is 10 members. Why? Clearly, there is a huge range of problems and situations relevant to domestic abuse and so a range of individuals and organisations with a range of experience and expertise, including experience of the whole sector and its interconnecting parts, is needed.

In our view, the commissioner should have the scope —and this is a matter of her autonomy—to appoint such a board to advise her, or, in the future, him, as she considers appropriate. At this stage, I am not arguing with the interests that the six are to represent under the Bill, although I remain concerned that they will be the Secretary of State’s pick, but if the commissioner wishes to bring in more than four further people in the capacity of advisory board members she should be able to do so. There seems no good reason to impose the restriction on numbers.

In Committee, the noble Baroness, Lady Williams, said that this was

“to ensure that the board can operate effectively and efficiently.”—[Official Report, 27/1/21; col. 1711.]

That is what we all want, but efficiency and effectiveness is about more than numbers. It is about what each member contributes and how the board as a whole operates and that should be a matter for the commissioner. The commissioner can and may well seek advice from elsewhere. I dare say she can bring people into board meetings as a one-off. I am not sure whether she can co-opt—I cannot see that there is a restriction on that. However, those individuals should be afforded the respect of a permanent role if that is warranted and not be limited as the board proposes. This issue encapsulates our concerns about the commissioner’s autonomy and independence and that is why we have chosen it as the one to pursue at this stage. I beg to move.

My Lords, I am very glad that the noble Baroness, Lady Hamwee, has brought this matter back to the attention of your Lordships on Report. Clearly, the idea of an advisory board is welcome and, like the noble Baroness, Lady Hamwee, I have no objection to the range of interests which the Bill specifies must be represented on the board itself.

Like the noble Baroness, Lady Hamwee, although it is not the subject of the Amendment, I am still very surprised by the term “representative”. I know that this is an advisory board, rather than a governance board, but having the notion of representatives is very bad corporate governance. People should be appointed for what they can contribute, not for whom they represent. I hope that that does not make it more difficult to have an effective advisory board.

I agree with the noble Baroness, Lady Hamwee, on the numbers to be appointed. I accept that 10 is a reasonable figure, but there may be circumstances where the commissioner would want to go above that. I fail to see why we cannot leave it to her good sense to be able to do so, if she wants to. I hope the Government will accept this very sensible and modest amendment.

My Lords, I am pleased to have this opportunity to support the noble Baroness, Lady Hamwee, on the role of the commissioner. Making sure it is autonomous and has some independence in decision-making with regards to the team and staff in management positions will enable her to be more effective, given the diversity of those in the women’s sector who undertake these very important areas of work.

I want to support this because the advisory board, management team and other decision-making structures must consider it necessary to embed diversity to strengthen their standing and credibility. More importantly, the presence of a diverse group of experts—and I use this word very carefully; it is not necessarily about representation, and should not suggest that people from diverse backgrounds are not going to be able to provide expertise—will, at all levels of decision-making, convey a very powerful message that the commissioner is committed to safeguarding the services for all survivors with the relevant expertise of different organisations. However she chooses to do that, it is important that she has diverse and meaningful experts who can inform and instruct the work of the commissioner.

As my noble friend Lady Hamwee has outlined, this is a modest Amendment which gives the commissioner a bit more leeway when it comes to appointments to the advisory board. More than this, it reflects the autonomy that we feel she should have. That is why we have picked this particular amendment as something that represents that.

Circumstances will change, as will the person who inhabits the role of commissioner. New disciplines and new ways of tackling the scourge of domestic abuse will emerge. In the Bill, the commissioner has some discretion on whom she appoints to her advisory board, which must have

“not fewer than six and not more than ten members”.

But what if she—or, in the future he—discovers someone else who could make an invaluable contribution but she already has the maximum number of 10 specified in the Bill? Does she take them on in different ways or co-opt them? Are they representatives? As several noble Lords have said, it is not necessarily a representative role that she needs; it is advice. She is there to advise, so why would we hamper her in that way?

I hope the Minister can explain the logic behind what seems to many noble Lords to be an arbitrary figure. If he cannot, can he please accede to this modest amendment.

Amendment 11 would remove the upper limit of “not more than ten” for members of the domestic abuse commissioner’s advisory board. In Committee, the noble Baroness, Lady Hamwee, asked

“why put an upper limit in legislation?”—[

This question was supported by my noble friend Lord Hunt of Kings Heath, who clearly also felt that a domestic abuse commissioner should be sufficiently trusted to decide for her or himself how many people they need on their own advisory board over the lower limit of six provided for in the Bill.

Although it was a straightforward question, reading in Hansard the Government’s response in Committee still leaves one unclear as to the answer. We were told by the Government that no more than 10 members would

“ensure that the board remains focused and provides clear advice to the commissioner.”

What is the Government’s evidence that 11 or 12 members, for example, would lead to an advisory board that is unfocused and provides confusing advice to the commissioner? No evidence at all was provided.

The Government then told us that a maximum membership of 10 was

“appropriate to ensure that the board can operate effectively and efficiently.”

Once again, not one piece of evidence was advanced as to why 11 or 12 would result in an advisory board that did not operate effectively or efficiently.

Unless it is a government desire to control as much as possible from the centre, what is the reason for the Government pulling the purely arbitrary figure of a maximum of 10 out of the hat, with the consequence that the limit on the size of the domestic abuse commissioner’s advisory board is a fixed, rigid and permanent number, laid down in law with not even an iota of flexibility?

Later on in their response, the Government said that they could

“leave it to the good judgement of the commissioner to appoint suitably qualified individuals”.

So the Government have confidence in the commissioner appointing suitably qualified individuals to her own advisory board, but not the confidence to let the commissioner decide how many such suitably qualified individuals she needs on her advisory board, over and above the minimum of six.

The Government also told us that they needed to

“avoid creating an unwieldy board which cannot then provide effective support to the commissioner.”

So the Government have so little confidence in the domestic abuse commissioner that they think that she, or a successor, would otherwise create an unwieldy advisory board unable to provide them with effective support.

However, the Government’s argument in Committee then did a complete U-turn. Having told us that there must be a rigid and fixed maximum number on the advisory board laid down by law, they then told us that the maximum membership of 10

“does not preclude the commissioner from also seeking advice from other sources”,

that

“the commissioner will be required to establish a victims and survivors advisory group to ensure that it engages directly with victims and survivors in its work”,

and, finally, that the commissioner

“may also establish any other groups as she sees fit.”—[Official Report, 27/1/21; col. 1711.]

So while the Government cannot trust the commissioner not to overdo it on the maximum membership of her own advisory board, they presumably trust the commissioner not to overdo seeking advice from other sources, not to overdo establishing a victims and survivors advisory group, and not to overdo establishing however many other groups she sees fit. The necessity for a fixed, rigid, permanent, statutory, government-determined maximum number, to be imposed on the commissioner for her and her successors’ own advisory board, just does not add up. That is why the Government could give no coherent, credible, evidence-backed explanation in Committee of the need for a statutory maximum, or why that maximum should be 10. The Government really ought to have a rethink on this issue.

I thank the noble Baroness, Lady Hamwee, for setting out why she has tabled this Amendment again, which would remove the upper limit of 10 advisory board members to be appointed by the domestic abuse commissioner. It is certainly important that the advisory board should be representative of a broad range of different groups and experts who have responsibilities for responding to domestic abuse. However, the Government submit that we need to limit the numbers of the board, not because we want to fetter the discretion of the commissioner but to ensure that the board is sufficiently large to be representative but not so large that it becomes unwieldy.

We consider that the maximum membership of 10 is the right number to ensure that the board can discharge its functions efficiently and effectively. I appreciate the acknowledgement by the noble Lord, Lord Hunt of Kings Heath, that 10 is a reasonable number, even if he supports the amendment in the name of the noble Baroness, Lady Hamwee. This upper limit does not, of course, stop the commissioner from also seeking advice from other experts, but the advisory board itself needs to be of a manageable size and small enough to provide focused support to her. To answer the point raised by the noble Baroness, Lady Hamwee, others could of course attend the advisory board meetings if the commissioner so wished, even if they were not members of it.

As I indicated in Committee, a member of the advisory board could represent the interests of more than one group, ensuring an even wider range of representation. For example, she or he could represent the interests of victims of domestic abuse while also representing the interests of specialist charities.

As the noble Lord, Lord Rosser, noted, in addition to the board, the commissioner will be required through her terms and conditions of employment to establish a victims and survivors advisory group to engage directly with victims and survivors in its work. I hope noble Lords will appreciate the importance of putting victims and survivors at the centre of that work. The commissioner may also establish any other groups as she sees fit, so could—as the noble Baroness, Lady Burt, asks—seek additional advice if she wanted to do so.

So the Government remain of the view that Clause 12 strikes the right balance between setting out certain minimum requirements regarding the membership of the advisory board while affording sufficient latitude to the commissioner to appoint one which can support her in the exercise of her functions. However, we would certainly be happy to keep this under review. On that basis, I hope that the noble Baroness, Lady Hamwee, will be content to withdraw her amendment.

My Lords, I am grateful to noble Lords who have supported this Amendment. As my noble friend described, circumstances can change. She put the position very clearly.

The noble Lord has just said that the matter will be kept “under review”. I realised as this short debate went on that this was one of the very rare occasions when I wished that the matter was dealt with in regulations rather than in primary legislation, because it would have been so much easier to change the numbers through secondary legislation.

Despite comments made by the noble Lord, Lord Hunt, and by me, the Minister used the terms “representative” and “represent” throughout his response. This is precisely something that continues to concern me—and the noble Lord, Lord Hunt, as he said. The Minister said that the Government do not want to fetter the commissioner’s discretion, but, of course, that is exactly what the Clause does.

The dynamics of groups is something which interests me—how a group develops ways of working and works most creatively. Other experts who may be asked to give advice would not be part of a cohesive unit. I think that a cohesive unit where members are able to spark off one another and bring to the table various parts of experience—including of life, as well as of the direct subject matter—makes for the most effectiveness. Sometimes disagreeing makes for effectiveness, too. Of course, a huge group will function in a different way. I am not anticipating a very big group. I have chaired for quite a long time a group of 25; that was too many, but it was too many for the particular task rather than too many, period.

I am actually more gloomy about this than when I started, particularly having heard the emphasis on representation. I can see that we are not going to change the Government’s mind, but perhaps I might ask: after keeping the number under review, if the Government think they have got it wrong, what mechanism—other than a new Bill, or finding a slot in a Bill within which it could be in scope—could they use to implement what they might think was a better number? I do not think I ought to ask the Minister to respond to that now, but a letter following today’s debate would be welcome. I can see he is not leaping up, which is probably wise—oh, he is.

For the benefit of other noble Lords as well, I am happy to provide a quick response. We will certainly take that point away and discuss it further. The noble Baroness is right that as it is in primary legislation then primary legislation would be needed. The Government submit that the number we are putting forward is reasonable. If the experience of this and future commissioners suggests that it is not then we would of course discuss that with them, and it would be a matter for Parliament to change the primary legislation if it so wished. Still, for the reasons that I set out, the Government consider that the number that we are putting forward, 10, will not bring about the problems that noble Lords have anticipated.

I thank the Minister for that. I hope we do not feel an urgent need to review this issue. I beg leave to withdraw the Amendment.

Amendment 11 withdrawn.

We now come to the group beginning with Amendment 12. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.

Clause 15: Duty to co-operate with Commissioner