283.Part 2 of the draft Bill provides for the establishment of a Domestic Abuse Commissioner to give public leadership on domestic abuse issues and participate in overseeing and monitoring the provision of domestic abuse services in England and Wales. The role is based on that of the Anti-Slavery Commissioner.
284.Clause 6 of the draft Bill sets out the Commissioner’s functions: to encourage good practice in the prevention of domestic abuse; the prevention, detection, investigation and prosecution of domestic abuse-related offences; the identification of perpetrators, victims and children affected by domestic abuse; and the provision of protection and support for victims. The clause also lists a number of activities that the Commissioner may carry out in performance of these functions. The Explanatory Notes to the Bill summarise these as follows:
assessing and monitoring the provision of services to people affected by domestic abuse. In this context the ‘provision of services’ will cover the provision of specialist services for victims and their children, such as refuges or other specialist support services; mainstream provision of statutory services, such as healthcare, which play a role in identifying victims, children and perpetrators and referring them onto more specialist services; and specialist provision for perpetrators, such as perpetrator behaviour change programmes. In carrying out such activities, the Commissioner is expected to co-operate and consult with specialist third sector organisations, public authorities, and other relevant Commissioners such as the Commissioner for Victims and Witnesses and the Children’s Commissioner for England.
285.While our witnesses were broadly in favour of the principle of having a Commissioner, they expressed concerns about whether the Commissioner would have enough resources, powers and independence to deliver what was expected of them. Some also sought greater clarity about the Commissioner’s remit.
286.In December 2018, the Home Office advertised for a designate Commissioner for Domestic Abuse, suggesting the role would require a commitment of two to three days a week. Final interviews were to be held on 25 March 2019. The appointee has not yet been announced, and the Home Secretary has assured us that recruitment is on hold while we complete our scrutiny.
287.We understand that the Government wishes to make rapid progress in implementing its Domestic Abuse Strategy, but we were surprised to learn that the process of recruiting a designate Commissioner had almost been completed before Parliament had had any opportunity to consider—still less to recommend any changes to—the draft Bill setting out proposals for the Commissioner’s remit and powers and the governance arrangements for the Commissioner’s office. We understand from the Home Secretary that the process has been put on hold while we complete our scrutiny, but it appears that the designate Commissioner’s appointment will be made on the basis set out in December 2018. We consider this unsatisfactory.
288.Our witnesses suggested that the proposed remit for the Domestic Abuse Commissioner was too narrow. A common criticism was that the role was that of ‘Domestic Abuse’ Commissioner rather than being explicitly a ‘Violence against Women and Girls’ Commissioner. They argued that many specialist services were designed not just for victims of domestic abuse but for victims of other forms of violence against women and girls; and that some local authorities commission services with regard to such a wider strategy. Nazir Afzal, the Welsh Government Adviser on Violence against Women, described the failure to extend the Commissioner’s remit as “a massively missed opportunity”.
289.In its response to the consultation on its proposed Domestic Abuse strategy, the Government explained its approach:
Given the challenges of improving the statutory agencies’ responses to domestic abuse, and the huge scale of the problem, we believe that the Commissioner’s remit should be focused on this issue [domestic abuse] alone, rather than being dissipated across all forms of violence against women and girls.
290.We have already stated our view that there needs to be greater integration of the legislation and policies relating to domestic abuse and violence against women and girls more generally. We recommend that this be reflected in the remit given to the Commissioner.
291.Many of our witnesses made suggestions about areas where the Commissioner might use their powers to spread best practice. Emily Frith of the Office of the Children’s Commissioner suggested that the Domestic Abuse Commissioner might look at the guidance to CAFCASS in order to improve the approach to children in family court proceedings. Others proposed a role for the Commissioner in relation to judicial training and local family justice boards; or argued that the Commissioner should consider the shortcomings in the approach of the probation service and prison authorities to programmes for perpetrators; or said that they wanted the Commissioner to help them to understand which approaches worked to enable chief constables and Police and Crime Commissioners to improve consistency and drive best practice. Amanda Barron JP said that she would like the Commissioner to establish specialist domestic abuse courts, “or certainly a multi-agency approach to domestic abuse,” in every justice area across the country.
292.There was considerable emphasis on the necessity for the Commissioner to understand and to promote multi-agency working, and in particular the strengths and needs of the third sector. As a result, our witnesses urged the inclusion of third sector organisations as part of the Commissioner’s advisory board. Tina Reece commended the practice in Wales of holding regular meetings across the country involving public sector organisations, the specialist sector, and representatives from survivor groups.
293.We were also told that it was vital for the Commissioner to take fully into account the needs of certain victims of abuse who risked being marginalised, including children, older people and migrant women. End Violence Against Women and Girls would like the Commissioner to have specific duties for more marginalised victims of domestic abuse, including black and minority ethnic women and girls and those with insecure immigration status. Elspeth Thomson of Resolution suggested that the Commissioner might have a role in relation to children taken into the care system because of domestic abuse. Age UK suggested that there should be a representative of older people on the Commissioner’s advisory board. Kevin Hyland said that he had convened an informal group of victims of modern day slavery, and thought that creating a panel of survivors was “essential”. Tina Reece commended this idea but emphasised that the Commissioner’s engagement with survivors should not be “tokenistic”. Diana Covey was less enthusiastic about the idea of two bodies, the advisory board and a group of survivors, arguing:
it is important that survivors sit at the heart of it. We do not want to see a two-tier system whereby the advisory board, with the great and the good, and chief execs of voluntary sector organisations like us, is here and the survivors’ group is over there. The voice of survivors should be in there, but also the voice of children, so we have a commission that ultimately may be accountable in law to the Home Secretary, but morally should be accountable to survivors and survivors’ children.
294.Asked about the Bill “relegating the gender element to statutory guidance”, the Home Office Minister told us she thought the Commissioner would have a role in ensuring that those commissioning support services for victims did not do so in a “generic” way.
295.The Government’s stated intention is that the new Commissioner would be independent. As a public, and publicly funded, official, however, the Commissioner has to be accountable. The draft Bill provides for the Secretary of State (as the Explanatory Notes state, in practice the Home Secretary) to appoint the Commissioner, determine the level of funding the Commissioner receives, and provide staff and “such accommodation, equipment and other facilities as the Secretary of State considers necessary for the carrying out of the Commissioner’s functions”. The staff would be civil servants either seconded to the Commissioner’s office or specifically recruited for the posts and would be employed by the Home Office, although the Commissioner must be consulted, and would have a power of veto over the appointment of staff.
296.The Secretary of State would have the power to review reports and direct the Commissioner to “omit” any material “if the Secretary of State thinks the publication of that material—(a) might jeopardise the safety of any person, or (b) might prejudice the investigation or prosecution of any offence.” The same power would apply to any advice the Commissioner published. The Commissioner would also be required to seek the Home Secretary’s approval for strategic plans, although any modifications would have to be agreed rather than being imposed. It is unclear what would happen if there were disagreement between the two parties.
297.Our witnesses were unanimous that the Commissioner would need to be demonstrably independent of Government if the role was to be effective. A number referred to the recent experience of the Anti-Slavery Commissioner, who had resigned on the grounds that he did not have sufficient independence from the Home Office.
298.Kevin Hyland told us he was concerned that the Secretary of State would have too much control of the Commissioner’s budget, the staff employed and the content of the Commissioner’s reports. He pointed particularly to the power wielded by the Secretary of State through control of the Commissioner’s budget, noting that immediately he took up his post, the Home Office had proposed a reduction in the funds that Parliament had been told he would be given. As a result, the budget for the office was not agreed by the start of the accounting year. While he acknowledged that he had been able to appoint the staff he wanted from outside the civil service, he described the process of appointment as “unbelievable”, adding: “Sometimes I would select staff, and seven months later they had not arrived, or when they did arrive they sometimes waited two or three months for pay. In my 30 years in the police, I never, ever saw that happen once.” He also described his experience of producing reports which, because they had to be approved by the Secretary of State, had to go through a long process of negotiation with and modification by a number of officials, with the final report not fully representing his views.
299.He concluded that the proposal that the Commissioner should report to the Home Office was “a terrible idea”:
What you have is an office holder whose role is to step outside and look at this independently, engage with whoever needs to be engaged with in order to protect victims and pursue those who commit these crimes, and create policies and strategies that are not influenced by the current Government or officials, who may have competing demands on their time or their policies.
300.Emily Frith, of the Office of the Children’s Commissioner for England, agreed that the draft Bill would not provide sufficient independence for the Domestic Abuse Commissioner, pointing in particular to the requirement for the Commissioner to send their draft reports and annual strategic plan to the Secretary of State for approval before publication. She also argued that the staff should be appointed by the Commissioner directly, rather than by the Secretary of State.
301.We asked about experience in relation to other Commissioners, and particularly the Children’s Commissioner, and the adviser position in Wales. Kevin Hyland was of the view that the Children’s Commissioner experienced some of the same challenges, noting that, like him, the Children’s Commissioner had found it bureaucratic and time-consuming to set up a separate website, and that the Children’s Commissioner was housed in a building shared with a government department whereas at least his office had been in a building shared with an independent body, HM Inspectorate of Constabulary. Tina Reece, of Welsh Women’s Aid, told us about the Adviser role established under the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015, explaining that post-legislative scrutiny of that Act had raised issues about the independence of the role. She said that the former Adviser had expressed a number of concerns, “mostly linked to the fact that there was not a specific budget. She did not have enough resources. She was physically located within the Welsh Government office with the civil servants and she had a Welsh Government email address. She was quite critical of that. I think she found that that had consequences for how independent she could be.”
302.Kevin Hyland believed that it was possible to achieve a balance between independence and accountability, citing as his model the role of Chief Constables.
303.The Home Office Minister reiterated that the Government wanted the Commissioner to be independent, and that she expected the Commissioner to act “without fear or favour, including by criticising, where appropriate, local government and national Government.” She argued that the independence of the Commissioner would derive not just from the legislative framework, but from the way they discharged their functions. She noted that the Commissioner also had the final say on who was appointed, as members of staff, to their office. The Minister said that it was for the Commissioner to determine their own work programme and the content of their reports, and she categorically stated, “The Home Secretary has no right of veto in terms of the reports, the plans, or elsewhere. The reason the strategic plan is to be run past the Home Secretary is that this commissioner office, as with other commissioner offices, will be within the remit of the Home Office, but the Home Secretary does not have the power to veto that plan.” She added:
We are very sensitive to the concerns that stakeholders have on this, which is why we are drawing up a charter for the commissioner and the Home Secretary or the Home Office to understand where responsibilities lie, and where functions lie. But I would like, again, to emphasise that this is an independent role. I want them to work.
She also assured us that the Government would apply lessons learned about the role of the Independent Anti-Slavery Commissioner in the independent review of the Modern Slavery Act 2015.
304.When we sought views on how the Commissioner’s role could be made more clearly independent while still maintaining the accountability necessary in the public service, our witnesses focused on two aspects: whether the Home Office was the appropriate lead department, and whether accountability to Parliament, as distinct from government, was necessary. Andrea Simon, of End Violence Against Women, emphasised that the Commissioner would need to be demonstrably independent from the Home Office if it were to represent all victims of domestic abuse effectively. She said:
We have some concerns about categories of victim such as migrant women. Since their situation is so deeply impacted by immigration policies and the Home Office is the holder of immigration enforcement, there could be a conflict in its representing the interests of that group of victims to its very best ability. Perhaps the potential domestic abuse commissioner could answer to the Cabinet Office or some other Department.
305.Kevin Hyland reported on his experience of working with a multi-agency, cross-departmental taskforce led by a senior responsible person in the Cabinet Office, which he said had “enormous benefits” in terms of bringing Ministers and officials together with experts they would not normally meet and in encouraging the Cabinet Office to focus on a problem that required a cross-governmental approach. Mr Hyland said, however, that his role in respect of the taskforce sometimes came into conflict with his responsibility to the Home Office.
306.Emily Frith noted that the Children’s Commissioner had to send draft reports to the Secretary of State for Education before publication, and that the Secretary of State had to approve its annual strategic plan. She stated, “We would like to see both those things removed, because that would give the commissioner much more independence to report directly to Parliament.” Kevin Hyland told us that, during his reappointment, he was criticised for giving evidence to a parliamentary committee. He suggested that, if the Commissioner were to be responsible to a parliamentary committee rather than a government department, then they would be able to express concerns more openly.
307.In its report on domestic abuse, the Home Affairs Committee recommended that the Commissioner be accountable, and report directly, to Parliament rather than to Government, and should be independently accommodated and resourced.
308.The Minister rejected the suggestion that the Commissioner should report to other departments as well as the Home Office or a parliamentary committee. She argued that this was not how Commissioners were held accountable, citing the Children’s Commissioner reporting to the Department for Education and the Victims’ Commissioner to the Ministry of Justice.
309.There was virtual unanimity among our witnesses that the resources currently allocated to the Domestic Abuse Commissioner were inadequate. Concerns focused on three areas: the overall budget for the office, the ability to employ enough—and the right—staff, and the intention that the post of Commissioner should be part-time.
310.Dr Magić of Galop argued that the current budget (of about £1 million a year) was “insufficient to drive the planned step-up in ambition that is required”. She also expressed concerns about the proposed part-time nature of the role and believed it was unlikely to be sufficient given the scope of the crime and the number of people affected. Refuge agreed on both counts. Kevin Hyland thought the role should be full-time. Nazir Afzal said it was “nonsense” that the Government was not prepared to pay the comparatively small cost to make the post full-time when domestic abuse was estimated to cost some £66 billion a year in GDP.
311.Far from accepting that the Commissioner’s job should be part time, Elspeth Thomson of Resolution wondered whether it might be appropriate to employ in addition some local abuse commissioners to look at what was happening across the country. Duncan Shrubsole, of the Lloyds Bank Foundation, agreed that it was unlikely that one person would have the expertise necessary to understand the full range of issues associated with domestic violence, which made access to a wide range of expertise and support within the Commissioner’s office all the more important. He thought a part-time Commissioner was feasible only if they had an effective team of deputies. He cited the lessons to be learned from the experience of the Children’s Commissioner and the Anti-Slavery Commissioner: “Those commissioners started with good intentions, but they did not necessarily have [the resources] they needed from the start.” Tina Reece suggested that some of the difficulties experienced by the Adviser to the Welsh Government were attributable to insufficient resources being allocated to the role. She also noted that the Adviser had initially been a part-time post, but was subsequently expanded to a full-time post and job share. She added that the Adviser had a narrower remit than the proposed Commissioner because the role did not involve criminal justice.
312.The Minister stated that the proposed budget compared well with those for other commissioners. She also said the judgement that a three-day week would suffice had been based on what other commissioners were expected to do. She noted that the experience of the designate Commissioner’s part-time role would enable the Government to adjust the proposal.
313.The draft Bill imposes a duty on “specified public authorities” to “so far as is reasonably practicable, comply with a request made” to them under the Commissioner’s statutory powers. Specified public authorities include English local authorities; various police bodies; the Crown Prosecution Service; education inspectorates; NHS bodies in England and the Care Quality Commission, among others. It does not include central government departments. A specified public authority must respond to any report by the Commissioner that contains recommendations relating to it within 56 days of publication.
314.Those who gave evidence to us concurred in arguing that the Commissioner needed “real teeth” to compel the necessary changes in practice. They argued that commissioning was too fragmented and piecemeal, too much of a postcode lottery, and in some circumstances pressures were leading to dangerous practices. They considered that the Government’s strategy would work better if local authorities had to change their approach as a result of the Commissioner’s recommendations. Jo Todd of Respect said that guidance on best practice already existed: “we need structures of accountability and inspectorates that really inspect. When we have seen it work—we have seen HMICFRS really scrutinise and delve into police performance on domestic abuse—it has transformed practice. There is real scope for using those kinds of powers to change things. We do not want this to be a wasted opportunity, specifically around perpetrators.”
315.Jane Gordon of Sisters for Change suggested the powers and functions of the Equality and Human Rights Commission as a useful model, arguing that where systemic failings by public authorities were found, the Commissioner had to be able to ensure some measure of compliance.
316.Kevin Hyland concurred, from his experience as Anti-Slavery Commissioner:
You kind of expect that most people will play nicely, and many do, but then you have challenges, even coming from a policing career.
The piece in the Bill about recommendations having to be reported on, and then a reply having to come, is one step forward from where the modern slavery commissioner role was, because there was no compelling of a reply. That is very important, but there are issues on which there needs to be a power to intervene. There will have to be checks and balances on that, and on what the intervention does, what it compels an organisation to do and to whom that should be made public, but the powers in that sense are so important.
317.The dissenting voices were those representing local authorities and the Government. Councillor Blackburn was “not keen” about the Commissioner having the power to direct local authorities. He saw the role as sharing best practice and findings from homicide and serious case reviews to ensure that local authorities understood their duties. He argued that there would invariably—and sometimes rightly—be differing levels and types of services provided by different councils, as the picture of domestic abuse varied dramatically from one authority to another. He stated: “It is a fundamental change to the nature of that relationship when a commissioner fundamentally becomes an inspector and starts to direct local authorities on how local services ought to be designed.”
318.The Minister argued that it came down to a balance between the powers of a national commissioner and local democracy and accountability. She said that because the Commissioner would have the power to report and to make recommendations, and statutory agencies would be required, by law, to respond to those recommendations publicly, this would exert considerable pressure on local commissioners, the police and other agencies. “It would be for a local council or a police and crime commissioner, were they to reject the explicit findings of a commissioner as to improvements that need to be made locally or criticisms of how they are running their services. That would be, I have to say, quite a bold decision by the local agency or commissioner.”
319.The Minister was of the view that the powers provided by the draft Bill were adequate. She pointed to the existing national statement of expectations, and said: “I would expect the commissioner to be not only independent but forthright in their assessment of the provision of services locally and nationally.”
320.Many of the issues raised in the course of our inquiry were considered by our witnesses to be matters for the Domestic Abuse Commissioner to address. They suggested widening the Commissioner’s remit and proposed comprehensive, detailed work in a number of specific areas. The Home Office clearly regards the role as one which issues guidance and reports compliance, and it has made provision for the Commissioner to be funded and for staff to be provided accordingly. However, those working in the field were firmly of the view that, if this role was to make a major contribution to combatting domestic abuse, the Commissioner would have to be more pro-active, would have to work across government and with multiple local partners, and would have to be able to hold public authorities to account for any failings. They therefore considered that the Commissioner’s role should be full-time and the budget and staffing for the Commissioner’s office should be larger.
321.While we do not necessarily endorse every suggestion made to us about the work the Domestic Abuse Commissioner should do, we think that in practice the Commissioner’s office would have a greater quantity and wider range of and more in-depth work than the current funding and staffing arrangements would permit. We recommend that the role of Commissioner should be full time, and that, within a year of the designate Commissioner starting their role, they or, if then in place, the statutory Commissioner should publish an assessment of the financial and personnel resources required to carry out the role.
322.As we have repeatedly emphasised, the Commissioner would need to work with multiple agencies, national and local, in areas such as healthcare, housing and education. While the draft Bill would require public authorities to reply to any recommendations addressed to them in a report by the Commissioner, it is silent about what would happen if the authorities failed to make the recommended changes to their practice. We were told that it was undesirable to confuse the role of commissioner with that of an inspector. We accept this, but we think it unacceptable that service providers might be able simply to ignore the Commissioner’s recommendations. The role of enforcing best practice properly lies with Ministers, but currently there is no duty on government departments to co-operate with the Commissioner. We recommend that Clause 13 of the Bill be amended to place this duty on government departments. This would give Ministers a clear mandate to ensure that public sector commissioners and providers change their behaviour.
323.As far as the linked issues of independence and accountability are concerned, we have grave concerns about the proposal for the Commissioner’s role to be responsible to the Home Office. There is a potential for the Home Office to experience serious conflicts between its work in relation to domestic abuse and its responsibility for immigration control. This has led a number of our witnesses to question whether the Commissioner could really be independent when considering the needs of migrant women if answerable to the Home Office. They suggested that a Cabinet lead would enable a cross-departmental approach. This argument was supported by the former Anti-Slavery Commissioner’s assertion that his most effective cross-government work was done when he reported to the Cabinet Office rather than the Home Office.
324.We recommend that the Commissioner be responsible to the Cabinet Office, to provide the Commissioner with extra authority in relation to the wide range of Ministers and government departments with which their office will have to engage. We also recommend a clear, direct accountability to Parliament, as an assurance of the Commissioner’s independence of government. Furthermore, the draft Bill should be amended to remove the requirement for the Commissioner to submit draft reports and advice to the Secretary of State and to obtain the approval of the Secretary of State for their annual strategic plan. The Commissioner should be given power to appoint staff independently, albeit on civil service terms and conditions.
325.We recommend that the Commissioner be given the duty to consult with partners and agencies in Wales, and that the National Assembly of Wales be enabled to undertake appropriate scrutiny of how the Commissioner’s Office discharge their responsibilities.
326.Overall we consider that there should be a complete review of the approach taken to establishing Commissioners offices. The inconsistency between Commissioner powers, functions and independence is arbitrary and undesirable. We strongly recommend the Government to adopt a more uniform approach to establishing a Commissioner role with independence built into each by using the Cabinet Office as the sponsor department.
368 , para 63. Clause 6 lists the Commissioner’s activities as; assessing, monitoring and publishing information about the provision of services to people affected by domestic abuse; making recommendations to any public authority about its functions; undertaking or supporting research; providing information, education or training; taking other steps to increase public awareness of domestic abuse; consulting public authorities, voluntary organisations and others; co-operating or working jointly with public authorities, voluntary organisations and others, including outside the United Kingdom.
369 Cabinet Office, ‘’, accessed 11 June 2019
370 Rt Hon Sajid Javid MP, Home Secretary ()
371 See, for example, (Ellie Butt and Andrea Simon), (Diana Covey), (Nazir Afzal and Kate Ellis), (Jane Gordon)
373 See paragraphs 10–11 above
377 (DCC Louisa Rolfe)
379 See, for example, (Allen), (Jacobs)
383 Age UK ()
388 , para 61
389 Draft Bill,
390 Draft Bill, and , para 61
391 Draft Bill,
392 Draft Bill,
393 Draft Bill,
394 See, for example, Agenda (), Dr Elizabeth Kubiak ()
405 ; Independent Review of the Modern Slavery Act, First interim report: The Independent Anti-Slavery Commissioner (17 December 2018)
406 See, for example, Association of Directors of Children’s Services ()
425 Draft Bill,
426 Draft Bill,
427 Draft Bill,
428 Draft Bill, generally
429 Draft Bill,
430 See, for example, (Ellie Butt), (Lucy Hadley), (Eleanor Briggs), (Nicole Jacobs) (Duncan Shrubsole), (Lyndsey Dearlove), (Nazir Afzal and Kate Ellis), and CARE ()
431 , and
Published: 14 June 2019