Motion C1 (as an amendment to Motion C)

Domestic Abuse Bill - Commons Reasons and Amendments – in the House of Lords at 3:02 pm on 21st April 2021.

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Baroness Helic:

Moved by Baroness Helic

At end insert “and do propose Amendment 33B in lieu of Amendment 33—

33B: After Clause 64, insert the following new Clause—“Training(1) The Lord Chancellor must within six months of the passage of this Act publish—(a) a strategy for providing specialist training for all magistrates and judges hearing cases in family proceedings in the Family Courts concerning rape, sexual and domestic abuse and coercive control; and(b) a timetable for the delivery of the training mentioned in subsection (1)(a), to include the training of all judges and magistrates who are already hearing or who are to be appointed to hear Family cases and to include continuing professional development training for all such judges and magistrates.(2) The training mentioned in subsection (1)(a) must include but is not limited to training concerning—(a) the impact upon victims and witnesses, both adults and children, of the trauma of rape, sexual and domestic abuse and coercive control;(b) the risks and difficulties for victims and witnesses in giving evidence and taking part in proceedings concerning rape, sexual and domestic abuse and coercive control;(c) the risks and difficulties for victims and witnesses of being involved in proceedings where one or more other parties may be the perpetrators of rape, sexual and domestic abuse and coercive control or persons connected to such perpetrators.(3) Before publishing the strategy and timetable mentioned in subsection (1)(a) and (b) the Lord Chancellor must consult—(a) the Lord Chief Justice;(b) the Chairman of the Board of the Judicial College;(c) the President of the Family Division;(d) the Chief Executive of the Magistrates Association; and(e) the Domestic Abuse Commissioner.(4) After commencement of this subsection, which must be not more than two years after the passing of this Act, the Lord Chancellor must ensure that no Family cases are heard by judges or magistrates who have not successfully completed the training mentioned in subsection (1).””

Photo of Baroness Helic Baroness Helic Conservative

My Lords, I express my thanks to everyone who has supported this amendment in its previous guises, especially the noble Lord, Lord Marks, my co-sponsor; the London Victims’ Commissioner, who played an instrumental role in its early stages; and the domestic abuse commissioner-designate.

I am grateful to my noble friend the Minister for meeting me several times and engaging with what I have had to say, even if he does not agree with it. He raised two fundamental objections: that the amendment is unnecessary, and that it is contrary to the principle of judicial independence. I am yet to be convinced of either of those points. We are assured that all judges and magistrates already undergo training on domestic abuse, but there is very little transparency around the form of the existing training. I am grateful to my noble friend for offering more detail than we have previously heard on this point.

I am pleased that domestic abuse makes up more than 50% of the content of private law induction training. However, I am afraid, that makes the case for this amendment only stronger. Based on the real evidence that comes out of the family courts day in, day out, the existing training is simply not working. Judges and magistrates do not have the necessary understanding of domestic abuse. We still hear of judges who do not believe in coercive control, do not recognise domestic abuse unless it leaves physical injury, and say that there was no conviction for abuse so therefore there was no abuse. Survivors—both men and women—are unable to trust the courts and are afraid to go to them. Abusers know that they can use the courts to continue their abuse.

If the existing training is not working, we must reform and improve it. That is why the requirement to consult the domestic abuse commissioner is so important. I am pleased to hear that the senior judiciary takes this issue seriously but, when the system is so flawed, it is hard for effective change to come from within it. If the Judicial College could open itself up to and work with experts such as the domestic abuse commissioner, that would make a real difference. It is the sort of commitment that we need but which we have not yet heard. It is worth stressing this point: without specific detail on the nature of training, it is hard for specialist organisations to assess whether it is up to date and appropriate. I hope that my noble friend, and indeed the senior judiciary, will look hard for ways to improve the transparency around training and engage with a wider range of experts and organisations in providing that training.

On the question of judicial independence, of course I recognise that my noble friend is right to be cautious. Judicial independence is hugely important and I would not want to suggest anything to undermine it. However, I do not accept that this amendment does that; I hope that I have made this even clearer in its revised version in Motion C1. The Lord Chancellor is sworn to defend the independence of the judiciary. In drawing up a strategy for training, he would have to act within the terms of that oath. The amendment also makes clear the important roles of the Lord Chief Justice, the chairman of the board of the Judicial College, the President of the Family Division and the chief executive of the Magistrates’ Association. That is a powerful judicial voice in the process.

I know that my noble friend the Minister recognises that training is necessary to make all the provisions in the Bill work as they ought to—as we hope they will. I am grateful to him for raising this with the President of the Family Division and the head of the Judicial College, and I am pleased to hear their assurances on reform. I note, however, that we have heard similar assurances for some time now without seeing real change. For example, the harm panel implementation plan made commitments on training that we have not yet seen implemented. This is why I still believe that legislation is an appropriate and necessary route in delivering the improved training that we both think is required. If my noble friend cannot accept this, I hope that he will prove me wrong. Perhaps he could play a convening role, bringing together judges and domestic abuse experts. I hope that he will continue to make the views of your Lordships’ House, which contains eminent lawyers and former judges who support this amendment, very clear to the senior judiciary.

The current training is not working. Reform is desperately needed. If we hope to build a system that works for victims and survivors—not their abusers—we must not forget that.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 3:15 pm, 21st April 2021

My Lords, I will speak briefly on this Motion because we are well on course to achieve what we set out to do. I commend the noble Baroness, Lady Helic, for the commitment and assiduity with which she has pursued this topic in the face of assurances that, at times, have seemed to her complacent and misplaced. The seriousness with which this topic is now being addressed is a credit to her and many others.

I understand and accept entirely the Government’s concerns about judicial independence. Indeed, noble Lords will know that I have argued the case for it on any number of occasions in this House. I am not sure that either the amendment we put forward or the Motion that is now there in its place would have compromised judicial independence to the extent that the Government thought. However, we accept that judicial training is a matter for the judiciary. We also accept that, for many years, judicial training has been mandatory on induction and on a continuing basis for judges sitting in family cases, but it is important to ensure that such training is comprehensive, up to date and, above all, successful. That, I believe, is an objective we all share.

It is also important to recognise that there has been a problem with domestic violence victims feeling that they have been treated unsympathetically by the courts in the past. There is a deeply held feeling that the trauma that they have suffered has been insufficiently recognised, and that the particular trauma involved in court processes and reliving the violence that they have suffered has not been properly addressed. A great deal of evidence to that effect has been given in speeches to this House during the passage of the Bill.

We have made significant progress with the Bill towards making the courts more humane places for domestic violence victims. We have been assisted enormously by the many groups and individuals who have briefed us, particularly Women’s Aid, Claire Waxman —the Victims’ Commissioner for London—and many others. We are very grateful to all of them for their insights and suggestions.

There is room for much more progress. I am particularly concerned to see faster progress towards more judicial diversity. Throughout the debates on this Bill, it has been clear to all of us that ethnic-minority victims and parties to proceedings have suffered unduly from the difficulties and hardships caused by domestic violence. I believe that many share my view that a judiciary that more clearly represents the people who appear before it—in colour, background, age and gender—would appear, and be, more attuned to the challenges and traumas that victims face.

Throughout this process the noble Lord, Lord Wolfson, has been ready to meet us and listen to the concerns expressed. I am extremely grateful to him for all his help. We are particularly heartened by his assurances today, passed on through him from the senior judiciary, not only to the effect that there is a strong commitment to improved judicial training but also to the effect that considerable emphasis is placed on domestic abuse training. Particularly important is his telling us that the Judicial College already has in hand arrangements for judicial training in the light of both the provisions of the Bill and, no doubt, the discussions in this House and the other place concerning them.

In the clear expectation that judicial training directed at addressing the particular difficulties facing domestic violence victims is a high priority, I welcome the progress that we have made and agree with the decision made by the noble Baroness, Lady Helic, not to divide the House on this Motion.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, this amendment is understandable but misconceived and I am relieved that it will not be put to a vote. I declare an interest as a former chairman of the Family Committee of the Judicial Studies Board, which was the forerunner of the Judicial College.

I have recently been in touch with the Judicial College to find out what training there is at the moment and what is intended when the Bill becomes law. I hope that the House will bear with me as I bring noble Lords up to date. I propose to say quite a lot, despite noble Lords having heard from the Minister. I do not accept that the current training is not working. The Judicial College trains all judges at every level and all magistrates sitting in the criminal and civil courts. Judges and magistrates are identified as appropriate to sit in particular work such as domestic abuse, and they are ticketed to do so only after they have had sufficient training. They are not allowed to sit until they have had that training. The training involves a three-day induction course in a residential setting, followed by continual professional residential training throughout their time as a magistrate or judge.

The training in domestic abuse includes hearing from victims and victim organisations. A lot of online extra information and advice is also sent to judges and magistrates. However, the Judicial College is only part of the training. The president sets out instructions to judges in practice directions. PD12J, updated in 2017, which I have no doubt will be updated again, sets out how family cases involving domestic abuse should be tried. The Court of Appeal sets out instructions and advice on how to approach and try domestic abuse cases. An important judgment for the Court of Appeal, Re H-N and Others (children) (domestic abuse: finding of fact hearings), was given earlier this year. The three members of the court were the President of the Family Division, the chairman of the Judicial College and a member of the criminal sentencing panel, all of whom are involved in the training of family and criminal judges and magistrates. The president himself takes a personal interest in the training of family judges.

The House may be interested to know that in the H-N case, the Court of Appeal invited the various victims’ organisations, such as Women’s Aid, to be represented at the court and to give their views, which were carefully listened to by the court—and that was shown in the judgments. In the H-N case, the president set out some statistics which showed that 1,582 full-time family judges, some part-time family judges and 2,744 family magistrates sat in family cases in England and Wales. The president said that it is thought that domestic abuse allegations are raised in at least 40% of cases in which parents dispute the future of their children. That means that domestic abuse issues are raised in about 22,000 child cases each year. In addition, the courts received last year 29,285 applications for injunction orders seeking protection from domestic abuse.

It is obvious, as we have heard during proceedings on the Bill, that some judges get it wrong. That is obvious from the H-N case, where in four cases things went wrong. It is helpful that the Court of Appeal saw that and put it right. However, from the large number of cases tried by the courts, there are very few appeals to the Court of Appeal and I would suggest, despite what has been said—particularly by the noble Baroness, Lady Helic, who said that the training is not working—that only a comparatively small number of people have in fact had bad experiences and that most judges have got it right.

I am told by the Judicial College that the domestic abuse training is being updated in the light of the forthcoming Act and instructions from the most recent Court of Appeal cases such as H-N and several others. The new Act will become an integral part of the family training of judges at every level, and of magistrates. It will form part of the courses taken by the judges and magistrates trying criminal cases as well. It is across the board. The president has also set up a private law working group which includes domestic abuse. There is, therefore, a great deal of information, guidance and instruction to judges and magistrates on how to try domestic abuse cases, which it is their duty to follow, and they are given the training to do so.

It is not in my view that there is a lack of good training; it is that some judges do not seem to have benefited from it. I cannot see how any statutory guidance from the Lord Chancellor will improve how judges deal with such cases. It is a matter of trying to make sure that the limited number of judges who do not do well enough will do better. Much of that comes from appeals to the Court of Appeal, which can put the matter right and give sensible and helpful advice.

I am relieved that this matter will not go to a vote because, although I have not dealt with it, this is also, as the Minister has said, a constitutional issue of judicial independence. I hope that the House will now be satisfied that the Judicial College is doing the best job that it possibly can and will, with the new Act, do somewhat better.

Photo of Baroness Watkins of Tavistock Baroness Watkins of Tavistock Deputy Chairman of Committees

Does anyone else in the Chamber wish to speak? No? I call the next speaker on the list, the noble Lord, Lord Paddick.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, as the noble Baroness, Lady Helic, has said, with the best will in the world, much of the legislation that this House passes will be ineffective if judges do not understand the issues. Sadly, in some cases—albeit a limited number—it is clear that they do not understand the issues surrounding domestic abuse, in particular, coercive control, rape and sexual abuse, despite current training.

To the noble and learned Baroness, Lady Butler-Sloss, I would say that there is a difference between outputs and outcomes. I am not sure whether this is an appropriate analogy, but I know from my own experience of race relations training, for example, that the cultural shift needed is difficult to achieve. The proof of the pudding is in the eating and, at times, the training of the judiciary has failed the test. Despite the Minister’s assertion, I fail to understand how mandating such training without dictating the specific content can be contrary to the principle of judicial independence, as my noble friend Lord Marks of Henley-on-Thames has said.

However, we are grateful for the reassurances that the Government have given as a result of the concerted efforts by the noble Baroness, Lady Helic, and my noble friend Lord Marks of Henley-on-Thames.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, we on these Benches support the intention behind the noble Baroness’s amendment. The case for improved training is well made. The amendment’s wording does not dictate what the training should be but puts the requirement for it in the Bill. Around the House, I think that we can all agree on the need for updated, quality training and to ensure that it happens.

I have said many times that this is a good Bill and will be a good Act of Parliament, but it is important that everything is done to ensure that all aspects of the law are correct. That includes ensuring that our judges and magistrates are properly trained. We owe that to victims, because domestic abuse is something that we now talk about in the country and in the House. That was not the case many years ago and we should not just assume that judges and magistrates completely understand the issues. That is why it is important that we get the training right.

I accept entirely the point the noble Lord, Lord Wolfson, makes about judicial independence. I think we all support that, but there have been one or two occasions at the other end of the building when other parts of the Conservative Party were not so keen on judicial independence, when the judge made a decision that they did not like—we should get that on the record. It is not always the case that there is a great call of support for judicial independence, but I will leave the point there. I do not in any way bring the noble Lord into that; I have the highest respect for him.

It is important that people fully understand the effect of domestic abuse on victims and on witnesses. That is why this amendment was brought forward. I thank the noble Lord for his reassurances. From the discussions he has already had on these issues, how does he think he will ensure that the work the Judicial College will do will bring about that change, so that all judges and magistrates fully understand this horrific crime, in all its many facets, and take that into account properly when doing their work in our courts? With that, I thank the noble Lord for his response and look forward to hearing what he says.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice 3:30 pm, 21st April 2021

My Lords, I am again grateful to all noble Lords who have taken part in this debate. I first pick up the contribution from the noble and learned Baroness, Lady Butler-Sloss. On the previous Motion I respectfully commended her experience. Even though I lost that vote, I do so again, because she has given the House a lot of detail as to the training that is actually provided. The House now ought to be reassured that, right from the top of the judiciary through to the Judicial College, there is a commitment to the importance of training, to ongoing training, to training from a variety of providers and not just judges, and, as the noble Lord, Lord Marks of Henley-on-Thames, picked up, to specific training on the Domestic Abuse Bill—or, as I hope it will soon be, the Domestic Abuse Act. I hope that that level of detail has been helpful to the House and, in particular, helpful and reassuring to my noble friend Lady Helic.

I also tried—I hope I succeeded, to an extent—to reassure my noble friend as to the extent and content of the judicial training. I repeat the constitutional point that we cannot force the judiciary on the nature, content or extent of that training. But there is, as I have said, commitment from the very top to make sure that the Judicial College fulfils its role and that all judges and magistrates are properly trained on domestic abuse generally, and specifically on this Act. The House can be assured that in my ongoing discussions and meetings with senior judiciary, including the President of the Family Division, I will keep the question of training on domestic abuse on the agenda. Even if I did not, the President of the Family Division would be totally focused on it anyway, but none the less I will ensure that it is part of our discussions.

I also respectfully agree with the point make by the noble Lord, Lord Marks of Henley-on-Thames, that we must remember the particular difficulties—and the judiciary is increasingly aware of this—that victims of domestic abuse have in court proceedings. The House will be aware that we have made a number of other provisions in this Bill to do with witnesses, parties and cross-examination that will improve the lot of victims of domestic abuse in our courts. That is something I personally am very conscious of and focused on. Courts can be intimidating places at the best of times, and if you are a victim you can double, quadruple or quintuple the amount of intimidation you feel merely from the process. We have made some good improvements there.

The noble Lord, Lord Paddick, correctly says that the proof of the pudding is in the eating. The danger with metaphors is stretching them too far, but in this context we are all committed to making the best possible pudding. The way you do that, if I can stretch the metaphor, is to have the best set of ingredients. That is why the Judicial College, in its training, has already engaged, and will continue to engage, training from a wide variety of providers—though the decision as to who those providers are has to be ultimately that of the Judicial College.

I hope I have dealt with all the points raised in this debate. I will take literally 30 seconds to respond to the noble Lord, Lord Kennedy of Southwark, on the judicial independence point. It is such an important point that I must not let it go past, if the House will indulge me. My approach to judicial independence is really very simple: you can disagree with the decision but you respect the decision-maker. It really is as simple as that. I fear that, for the second time this afternoon, I have touched on points of important constitutional principle. I will not continue the lecture any further. I hope that my noble friend Lady Helic will indeed withdraw her amendment.

Photo of Baroness Helic Baroness Helic Conservative

My Lords, I will be brief. I am very grateful to all noble Lords who have contributed and agree with a great deal of what has been said. The noble Lord, Lord Marks, has been an invaluable support throughout this process, not least on navigating the constitutional issues, and I commend his words on the feelings of survivors and the importance of up-to-date training.

The noble and learned Baroness, Lady Butler-Sloss, has been a powerful voice on training across all stages of this Bill. I am pleased we agree on the importance of training, even if we do not agree on the mechanism for reform. Her update on the specifics of training is very interesting. It is reassuring that the courts are at least heading in the right direction, even if I believe that there is still some way to go.

The noble Lord, Lord Paddick, makes the important point that not all training is equal. It is not enough to have training; it needs to be good training. That is why reform is important. The noble Lord, Lord Kennedy of Southwark, adds his support for updated, quality training. This really is a cross-party issue, and I hope that this will be noted by the judiciary, which I hope is following these debates.

My noble friend the Minister has been generous with his time and in his response. I also value his role as an intermediary with the judiciary. It is very good to hear from him that reform is under way. I hope he will continue to raise this issue in his meetings with the President of the Family Division and others, and to keep an eye on training, even if the Government will not direct it. I am certainly grateful for the assurances he has offered us today.

I hope that, in debating judicial training, we have helped raise its status as an issue and made clear to the Government and the judiciary how important it is in tackling domestic abuse. The greater detail on existing training that my noble friend offered was important. The assurances and commitments we are hearing from him, and from the judiciary via him, are very welcome. There is much more work to be done. I hope that this can be the beginning of a process, rather than the end. For now, I will withdraw the Motion.

Motion C1 withdrawn.

Motion C agreed.