Violence against women and girls - Human Rights Joint Committee

Violence against women and girls - Human Rights Joint Committee Contents

5 Substantive law

Psychological violence (Article 33)

130. Article 33 of the Istanbul Convention requires coercive behaviour to be criminalised. It does not, however, stipulate that a specific criminal offence of coercive behaviour be created.

Article 33—Psychological violence

Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person's psychological integrity through coercion or threats is criminalised.

HOW WELL IS THE LAW COMPLYING WITH THE ISTANBUL CONVENTION?

131. There is not currently a specific criminal office of coercive behaviour in the UK. Norman Baker MP, when Minister for Crime Prevention, said in the Government's Action Plan that the Government had extended "the domestic violence definition […] to cover coercive control".[125]

132. Sandra Horley CBE, Chief Executive of Refuge, said:

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She went on to argue that criminalising coercive control could have unintended consequences:

127

133. Vera Baird QC was unsure whether there needed to be a specific criminal offence or not but argued that there was a need to raise awareness within the criminal justice agencies. She said: "domestic violence is about coercive control […] I am absolutely sure that we must stop having agencies that think domestic violence is about black eyes, and have ones that understand that is what is going on".[128]

134. Rachel Horman, Solicitor and Head, Domestic Violence and Forced Marriage Department at Watson Ramsbottom Solicitors, however, argued for the creation of a specific criminal offence for coercive behaviour. She said: "While I hear the argument that other legislation can be used, that is not actually happening in reality. I see clients every single day that are being told, 'Come back when he hits you, because we cannot do anything'."[129] Sara Browne, Iranian and Kurdish Women's Rights Organisation, argued that criminalising coercive behaviour would be beneficial to victims. She said: "If the law was on the side of the victim and she could say, 'This is wrong in this country, and these are my rights,' then that would help, but people need to know their rights."[130]

135. When we were taking evidence for this inquiry the Government was consulting on whether or not to create a specific criminal offence as part of the consultation on strengthening the law on domestic violence. The Government has subsequently published its summary of consultation responses[131] and on 18 December the Home Secretary announced that she would: "include a new offence of domestic abuse as an amendment to the Serious Crime Bill, to be introduced at [C]ommons committee stage. The amendment to the Serious Crime Bill will explicitly criminalise patterns of coercive and controlling behaviour where they are perpetrated against an intimate partner or family member."[132] We note in the Home Office's summary that 85% of respondents were "in favour of strengthening the law on domestic abuse, and [70%] felt that the current law does not capture the Government definition of domestic abuse."[133]

136. The amendment has been brought forward as the new clause "Controlling or coercive behaviour in an intimate or family relationship". The supplementary memorandum by the Home Office regarding the Serious Crime Bill says:

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137. The Law Reform Campaign, in response to the Consultation question "Does the current law adequately provide sufficient protection to victims of domestic abuse?" said:

Current legislation is not sufficient; it largely reinforces an approach based on single physical incidents, rather than capturing the patterns of power and coercive control within an ongoing relationship as detailed in the Home Office definition change of March 2013. These failings mean that the police do not have all the tools that they need and that Criminal Justice System cannot effectively intervene, nor translate and consequently penalise the crime before the abuse has escalated.

138. The Home Office also said: "55% of respondents felt the law needs to be strengthened with a new offence that captures patterns of coercive and controlling behaviour in a relationship".[135]

139. Women's Aid supported this announcement. Polly Neate, CEO of Women's Aid, said: "We hope this new law will lead to a real culture change, so that every woman experiencing control can get the support she needs to break free safely".[136] Gillian Guy, chief executive of Citizen's Advice, said: "the government was sending a clear message that domestic abuse in all forms will not be tolerated".[137] Sandra Horley CBE remained unconvinced and said creating a new offence was not the answer because there were "already enough laws", but that they were "not being implemented correctly".[138]

140. We commend the Government for undertaking work to raise awareness of coercive behaviour as a form of abuse. If Parliament approves the Government's proposed specific criminal offence regarding controlling or coercive behaviour in an intimate or family relationship, we are not convinced that this alone will lead to a change in culture within the criminal justice system and the wider public and instead may lead to unintended consequences that work against victims of violence. We urge the Government to consider the use of an awareness-raising campaign and a review of training for the criminal justice professions to accompany any change in legislation.

Legal aid (Article 57)

141. Article 57 of the Istanbul Convention requires the UK to provide legal aid for victims of violence against women and girls. The Ministry of Justice is responsible for legal aid, with the Legal Aid Agency responsible for administering it.

Article 57—Legal aid

Parties shall provide for the right to legal assistance and to free legal aid for victims under the conditions provided by their internal law.

142. Access to legal aid in civil cases for alleged victims of domestic violence is important because it enables access to the family court, for example, in child protection cases, restraint or divorce proceedings.

143. The Government reformed access to legal aid in civil cases in the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). Legal aid in civil cases has been retained for victims of domestic abuse, provided they can provide the relevant evidence that such abuse has taken place.[139]

144. In our Seventh Report of Session 2013-14, The implications for access to justice of the Government's proposals to reform legal aid, we concluded:

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145. We note that the House of Commons Justice Committee is conducting an inquiry into the effects of LASPO. One of the terms of reference for its inquiry is:

To what extent are victims of domestic violence able to satisfy the eligibility and evidential requirements for a successful legal aid application?

146. We do not wish to duplicate the work of the House of Commons Justice Committee. However, in the light of the consultation regarding a proposed new offence of coercive control, we have looked at the evidence required for proving psychological abuse. As psychological violence is included in the Government's definition of domestic abuse, legal aid is available for victims of psychological abuse. We also look at the availability of legal aid for victims with insecure immigration status in Chapter 7 of this Report.

HOW WELL IS THE LAW COMPLYING WITH AND THE POLICY AND PRACTICE OF THE UK FULFILLING THE POSITIVE OBLIGATIONS UNDER THE ISTANBUL CONVENTION?

147. In April 2014, Rashida Manjoo, the UN Special Rapporteur, concluded:

141

148. As we have mentioned in paragraph 144 above, the Government has committed itself to retaining legal aid for victims of domestic violence if they can provide evidence that abuse has taken place. The Government broadened the list of evidence required in April 2014. However, witnesses outlined their concerns regarding the evidence required for legal aid. Rachel Horman, Solicitor and Head, Domestic Violence and Forced Marriage Department at Watson Ramsbottom Solicitors, said: "The more controlling the situation and the less that a woman is able to get out of the house and out of that immediate community, the less likely there is to be any evidence in order to access legal aid".[142]

149. In response to questions about the evidence required for legal aid for victims of coercive control, the Minister of State at the Home Office and Minister of State at the Ministry of Justice said: "we are absolutely committed to legal aid being available to victims of domestic violence. It should remain available to protect victims, but we are looking at how flexible that needs to be. If people need it, we must have the evidence around it."[143]

150. We welcome the provision that those who can provide evidence of domestic violence continue to have access to legal aid for civil cases because this enables access to the family and other civil courts. We have concerns, however, about the problems some women face in providing such evidence, and the feasibility of victims of coercive control or women who may find it difficult to get out of the immediate community being able to provide such evidence. We recommend that before the proposed new offence of coercive control comes into force the Ministry of Justice review the requirements for evidence of domestic violence for access to legal aid.

Universal Credit

151. Dr Joanna Goodey, explained the vulnerability of women who are economically struggling and are therefore more likely to experience violence:

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Witnesses raised concerns regarding Universal Credit, financial control and victims of domestic violence. Financial coercive control can include reducing a woman's access to income.

152. The Government is still rolling out Universal Credit, which is replacing certain benefits. The Government's guidance says: "You will receive one monthly payment directly into your account. This will usually be paid into a joint account to help you and your partner manage your money together, but you can choose to have payments made into one of your individual accounts if you prefer."[145] The Government has said that: "If you have any concerns about accessing your payments and need to discuss alternative payment arrangements please contact the Universal Credit helpline…Alternative payment arrangements are considered on a case by case basis and assessed on their individual merits. This allows for the household payment to be split. Wherever possible, these alternative payment arrangements will be temporary whilst you take steps to improve the way you manage your money."[146] Women's Aid argued that payment into a joint bank account could leave a victim vulnerable if the male controlled the bank account. They also said "that in practical terms asking for a split payment could put survivors of domestic violence at risk. Even if the perpetrator does not have to agree to a split, it is likely to become obvious that the payment has reduced (because of the size of the award). If this is only done in cases of financial or other abuse, this could put the survivor at greater risk of further abuse."[147]

153. Hilary Fisher, Director of Policy, Voice and Membership at Women's Aid, recommended: "the whole of the money should go to the mother so that she does not have to ask the question […] Where there is a nominated payee, again the whole of the universal credit should go to the mother."[148]

154. The Minister of State at the Home Office and Minister of State at the Ministry of Justice did not accept these concerns and said: "I've not seen it in the pilots where this is being rolled out, and I was in the Department and this was part of my portfolio. People might think something will happen with UC, but they best wait and see, because actually the pilots are not indicating what they're saying".[149] The Minister for Women said: "That point has not been brought to me as Minister for Women. Should it be? That is the sort of thing that we would raise as part of the inter-ministerial group or directly with Iain Duncan Smith and the DWP Ministers, to ask what flexibility we have."[150]

155. The Government, in written evidence to us, said:

151

156. At a time when the Home Office is keen to raise awareness of coercive control, and noting the requirement of the Istanbul Convention for coercive control to be criminalised and victims protected, we recommend the Government look again at the payment of Universal Credit to couples.

157. We share Women's Aid's fears and wish to remind the Government that we expressed our concern in this area in our legislative scrutiny Report on the Welfare Reform Bill, when we said that the new payment method would 'reduce the financial autonomy of women'.[152] In our December 2011 Report we recommended that the Welfare Reform Bill, now the 2012 Act, 'be amended to allow payments for children to be labelled as such and be paid to the main carer'.[153]

158. The Government argued, however, that it was not possible to accept this recommendation because of the way that Universal Credit is structured. It is also our understanding that automatic payment of the whole Universal Credit to the mother (as opposed to the main carer) in couples with children, as recommended by Women's Aid, would not be lawful. We are also concerned that it may be counterproductive if it creates resentment among men.

159. We do not accept the Minister's assurance that the situation is satisfactory because problems have not yet emerged during the early roll-out of Universal Credit. The roll-out has only recently been extended to couples with children, the group arguably at greatest risk. On the principle that prevention is better than cure, we do not believe that the 'wait and see' approach that the Minister recommended is a responsible one, given the concerns raised by women's organisations about the possible risk to some women. We therefore recommend that the Department for Work and Pensions use the remainder of the roll-out process to test a number of different payment methods (such as automatic split payment to each partner in varying proportions) so as to assess which best protects the financial autonomy of women in couples, thereby strengthening their position should domestic violence occur. We also recommend that all relevant Department for Work and Pension officials be given domestic violence training so that they are better placed to handle sensitively situations of known or suspected domestic violence.

Unacceptable justifications for crimes, including crimes committed in the name of so-called "honour" (Article 42)

160. Article 42 requires states not to allow unacceptable justifications for crimes in criminal proceedings.

Article 42—Unacceptable justifications for crimes, including crimes committed in the name of so-called "honour"

1 Parties shall take the necessary legislative or other measures to ensure that, in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called "honour" shall not be regarded as justification for such acts. This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour.

2 Parties shall take the necessary legislative or other measures to ensure that incitement by any person of a child to commit any of the acts referred to in paragraph 1 shall not diminish the criminal liability of that person for the acts committed.

161. UK law and policy in this area are clear: there is no justification for a crime committed in the name of so-called "honour", religion, custom or tradition.

162. We have not heard anything that suggests there have been any cases in the criminal justice system in which unacceptable justifications for crime have been attempted and proved successful. The Government is clear that there is no room for arguments relating to cultural relativity in this area.[154] We have, however, heard examples where such justifications are being used in communities, and that practice is hard to change.

HOW WELL IS THE PRACTICE OF THE UK FULFILLING THE POSITIVE OBLIGATIONS UNDER THE ISTANBUL CONVENTION?

163. Witnesses told us that unacceptable justifications for crimes cross lines of race, age, culture and religions. Restored, an international Christian Alliance, said that it recognised "that attitudes and practices within the church need to be changed to ensure that religion is not used to justify acts of VAWG". Muslim Women's Network UK told us that, whilst they "strongly disagree with any suggestions that VAWG is in any way endorsed by Islam […] FGM for example, is a practice which in our opinion predates Islam with no authentic basis to validate any such connection", they believed that "culture has also been invoked as justifications and we consider it vital that this is addressed within the community itself through raising awareness and further education in a bid to change the mind set at a grassroots level". Naomi Dickson, Executive Director at Jewish Women's Aid, said: "We do come across Rabbis and the Rabbinate who will say, "Go home and try harder. It is your responsibility to build a Jewish family home in the right framework"".[155] The Deputy Children's Commissioner has published a report on gang culture. She told us that told us that there is a cultural acceptance within gangs: "it is quite clear that the young people who grow up in those neighbourhoods, if they are male, are carrying out very serious violence of all kinds against females and the girls just assume that that is part of growing up."[156] Sara Browne, Iranian and Kurdish Women's Rights Organisation, told us about the prevalence of dowry-related violence in the UK: "we are dealing with marriage cases constantly and dowry is one form of power and control that runs through all those cases".[157]

164. Rosie Lewis, from the Angelou Centre, argued that, in practice, there was a common misunderstanding of the overlaps between crimes against women in the name of honour and domestic violence and crimes against women generally. She argued that honour-based violence should not be regarded as a specific thing but "a continuum of violence against women".[158]

165. The Government said that it is taking steps to address these practices. The Minister for Crime Prevention said that the Government has been engaging with faith and community leaders to try and tackle these crimes. She also said that the time had passed where Government had "tiptoed around cultural eggshells".[159] Naomi Dickson, Executive Director at Jewish Women's Aid, told us that the Government's work was having a positive effect within the community she works with. She said "because of the massive amounts of awareness trickling down from government, and because of what we have done, we are starting to see results going in the right direction."[160]

166. We welcome the stance of the Government in tackling these crimes and attitudes. We believe it is right that a multi-cultural society in the UK should still respect equally the need for adherence to the law of the UK. We agree with our witnesses that it is essential that these attitudes are tackled, at an early age and across communities, within schools, as outlined in paragraphs 66 and 67 in this Report.

167. We recommend that the issue regarding the role of women, and equality between the sexes, across many cultures in the UK today needs further investigation. We have concerns about the status and treatment of women in deeply patriarchal, structured communities. We believe women in these communities face barriers to accessing help which can include language, community pressure, gender inequality, the teaching of beliefs which may challenge Convention rights, or coercive control. We do not believe the Government has succeeded in reaching these women or tackling the cultures which do not treat women as equal to men. We recommend that a standalone inquiry into these issues is necessary.

125 A Call to End Violence Against Women and Girls Action Plan 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/287758/VAWG_Action_Plan.pdf [accessed 2 December] Back

126 Q 73 Back

127 Ibid. Back

128 Ibid. Back

129 Q 79 Back

130 Ibid. Back

131 Strengthening the Law on Domestic Abuse Consultation-Summary of Reponses December 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/389002/StrengtheningLawDomesticAbuseResponses.pdf [accessed 2 January 2015] Back

132 Ibid. Back

133 Ibid. Back

134 Serious Crime Bill European Convention on Human Rights Supplemental Memorandum by the Home Office (BILLS (14-15) 075) Back

135 Strengthening the Law on Domestic Abuse Consultation-Summary of Reponses December 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/389002/StrengtheningLawDomesticAbuseResponses.pdf [accessed 2 January 2015] Back

136 New domestic abuse law on controlling behaviour unveiled: http://www.bbc.co.uk/news/uk-30532087 [accessed 2 January 2015] Back