Twenty First Report
Domestic Abuse Bill
1.The Domestic Abuse Bill was introduced into the House of Lords on 7 July 2020. Among other measures, the Bill establishes the office of Domestic Abuse Commissioner; it provides for a new domestic abuse protection notice and a new domestic abuse protection order; and it affords special protection for victims and witnesses in court proceedings. The Bill is accompanied by a Delegated Powers Memorandum (“the Memorandum”) produced by the Home Office.1
2.We draw attention to one point in three places where it occurs.
Clause 63: new section 31R(5) of the Matrimonial and Family Proceedings Act 1984
3.Clause 63 inserts a new section 31R into the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”), prohibiting cross-examination in person by a party to family proceedings where that person has been convicted of, given a caution for, or is charged with, a “specified offence”, where the witness to be cross-examined is the victim, or alleged victim, of that offence. In turn, the victim or alleged victim may not cross-examine the perpetrator or alleged perpetrator.
4.New section 31R(5) defines a “specified offence” to mean an offence specified, or of a description specified, in regulations made by the Lord Chancellor. The Government’s reasons why the Bill should not specify on its face the offences that will trigger the prohibition against cross-examination in person are as follows:
“ … in order to keep the details of the specified offences comprehensive and up to date, it is appropriate to set them out in regulations rather than in primary legislation, which would be harder to amend and keep current.”2
5.However, a comprehensive list can be as easily included in primary legislation as in secondary legislation—except where the Government have not yet made up their mind at the time of the Bill’s enactment. In this case, the Government have made up their mind. They propose to:
“ … broadly mirror the domestic violence and child abuse offences which are set out in a non-statutory list published by the Lord Chancellor under section 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and referred to in Schedules 1 and 2 to the Civil Legal Aid (Procedure) Regulations 2012 (SI 2012/3098), as amended”.3
6.A comprehensive list set out in primary legislation can—where it is necessary to do so—be kept up to date by a power to amend the list by regulations made by statutory instrument. Since this would be a Henry VIII power, we would expect any such regulations to be made by the affirmative procedure.
7.We recommend that, instead of the prohibition against cross-examination being a matter entirely for regulations made by the negative procedure, the Bill should set out the list of offences that the Government have in mind (Memorandum, paragraph 103) with a power to amend the list by regulations made by the affirmative procedure. This would achieve the Government’s aims of combining clarity and transparency with flexibility.
Clause 63: new section 31S(4) of the 1984 Act
8.New section 31S of the 1984 Act would prohibit cross-examination in person by a party to family proceedings where that person is someone against whom a protective injunction is in force, where the witness to be cross-examined is the person protected by the injunction. In turn, the person protected by the injunction may not cross-examine the person who is subject to the injunction.
9.New section 31S(4) defines a “protective injunction” to mean an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor under the negative procedure. Once again, the Government consider that, in order to keep the details of protective injunctions comprehensive and up to date, it is appropriate to set them out in regulations rather than in primary legislation, which would be harder to amend and keep current.4
10.For the reasons given at paragraphs 5 to 7, we recommend that, instead of the prohibition against cross-examination being a matter entirely for regulations made by the negative procedure, the Bill should set out the list of protective injunctions that the Government have in mind (Memorandum, paragraph 109) with a power to amend the list by regulations made by the affirmative procedure. As before, this would combine clarity and transparency with flexibility.
Clause 63: new section 31T(3) of the 1984 Act
11.New section 31T of the 1984 Act would prohibit cross-examination in person by a party to family proceedings where there is “specified evidence” that the party has perpetrated domestic abuse (as defined in clause 1 of the Bill) against a witness in the proceedings (or vice versa). “Specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.
12.As with “specified offences” under new section 31R(5) and “protective injunctions” under new section 31S(4) of the 1984 Act, the Government consider that, in order to keep the details of specified evidence comprehensive, up to date and—in addition—consistent where appropriate with the legal aid regime, it is appropriate to set them out in regulations, rather than in primary legislation, which would be harder to amend and keep current.
13.For the reasons given earlier, we recommend that, instead of the prohibition against cross-examination being a matter entirely for regulations made by the negative procedure, the Bill should set out the list of specified evidence that the Government have in mind (Memorandum, paragraph 117) with a power to amend the list by regulations made by the affirmative procedure. As before, this would combine clarity and transparency with flexibility.
1 Delegated Powers Memorandum, Home Office: https://publications.parliament.uk/pa/bills/lbill/58-01/124/5801124-DPM.pdf.
2 Memorandum, para 104.
3 Ibid., para 103.
4 Ibid., para 110.