The Domestic Abuse Act (DAA) 2021, which received royal assent on 29 April 2021, is a pivotal piece of legislation that helps to raise awareness and understanding of the impact of domestic abuse on survivors and children. It aims to improve the effectiveness of the criminal justice system in the protections afforded to survivors, established the domestic abuse commissioner (DAC) (to oversee and monitor the provisions of domestic abuse services in England and Wales), placed duties on local authorities to assess the need for accommodation-based domestic abuse support in their areas (s57), widened some criminal offences to include the new definition of domestic abuse and made access to housing easier for some survivors.

The DAA 2021, particularly s1, which expanded the definition of domestic abuse,2By way of s1, the definition of domestic abuse was expanded to include ‘controlling or coercive behaviour; economic abuse; and psychological, emotional or other abuse’. was a necessary step before the UK could ratify the Council of Europe’s Convention on Preventing and Combating Violence Against Women and Domestic Violence 3Implementation of the Council of Europe Convention on Combating Violence Against Women and Girls and Domestic Violence (Istanbul Convention) – 2021 report on progress (Home Office, November 2021), which stated that the UK had passed the ‘landmark Domestic Abuse Act 2021’, which meant that it was ‘fully compliant with article 44’ of the Convention (page 7). (the Convention4It is commonly referred to as the Istanbul Convention because it was opened for signature in May 2011 in Istanbul. In March 2012, Turkey became the first country to ratify the Convention. Ironically, Turkey is also the first – and, so far, only – country to withdraw from the Convention, which it did in 2021, although there is also considerable opposition to it in Poland.) – an international treaty ratified by the UK on 21 July 2022.5The Convention came into force on 1 November 2022. The (then) home secretary, Priti Patel, described it as a ‘gold-standard’ international charter for the protection of women and girls,6Hansard HC Written Statements vol 714 col 39WS, 17 May 2022. and with good reason: the preamble, which provides the backdrop to the Convention, includes statements about the understanding and commitments of states that ratify it, including:

By way of article 3, the definition of ‘domestic violence’ includes acts of economic violence between partners or former partners, and article 4(3) states that the ‘implementation of the provisions of this Convention … shall be secured without discrimination on any ground such as … migrant or refugee status’.

Despite its far-reaching provisions, focusing not only on the provision of services but also on the importance of ‘adequately resourced’ services (article 20(2)), and despite much optimism, it is doubtful that the Convention operates in a way that either expands the domestic housing duties on local authorities (especially towards those with NRPF) or that those Convention duties can be easily enforced in domestic courts.

The UK operates a dualist model. When it ratifies an international treaty, the treaty does not automatically become part of domestic law unless parliament chooses to incorporate all or part of it by way of primary or secondary legislation. Generally, unless there has been wholesale implementation, a provision of an unincorporated treaty with no counter-provision in the domestic legislation cannot give rise to a free-standing duty in domestic law.7See R (SC, CB and 8 children) v Secretary of State for Work and Pensions and others [2021] UKSC 26, discussed at November 2021 Legal Action 28.

In the years preceding the ratification of the Convention, parliament passed the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017, the purpose of which was to prepare the UK for ratification and to set out the reporting process. That reporting process required annual progress reports to be laid before parliament, setting out how the UK was preparing for ratification (s2). At the end of each progress report is a list of legislation that identifies the administrative and legislative measures that the UK has adopted that comply with the Convention.

Rather frustratingly, the progress reports do not cross-reference the domestic legislation with the corresponding articles in the Convention. However, the Explanatory memorandum: Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Foreign, Commonwealth and Development Office, 17 May 2022), laid before parliament as an ‘unnumbered Act Paper’, states: ‘Existing UK legislation satisfies the requirements of the Convention, primarily through the legislation set out below’ (para 5.1). It then lists legislation including the Equality Act 2010 and the DAA 2021. While the existing domestic legislation cited in the explanatory memorandum does, in many ways, reflect the provisions of the Convention, and in some instances even goes beyond it,8For example, the definition of domestic abuse in the DAA 2021, includes ‘controlling or coercive behaviour’ (s1(3)(c)), a phrase that does not appear in article 3 of the Convention. cross-referencing the articles with the domestic legislation is far from an easy exercise.

Accordingly, while the Convention is an unincorporated treaty and does not give rise to free-standing rights and obligations, it can be used as a tool for statutory interpretation where there is ambiguity arising in domestic legislation.

Lastly, even if the Convention did have direct effect, the UK’s reservation in respect of article 59, means that those with NRPF would still be locked out of state-funded support.9Article 59 requires states to grant autonomous residence permits to those survivors whose residence status depends on that of their spouse or partner, so that ‘in the event of the dissolution of the marriage or the relationship, [they] are granted [permits] in the event of particularly difficult circumstances’. As there is no reservation from article 4 (which prohibits discrimination on the grounds of immigration status), the exclusion of a group of people from the protection of support, created by the article 59 reservation (and, of course, by the domestic law provisions), is a violation of the Convention. The government’s response is that any concern relating to the reservation is met by the financial support made available to assist those with NRPF, such as the Support for Migrant Victims Scheme announced in April 2021.

The reservation from article 59, and the limited support available for those with NRPF who experience domestic abuse, has been severely criticised by the DAC and the domestic abuse sector in general.10See Safety before status: improving pathways to support for migrant victims of domestic abuse (DAC, 2021) and Safety before status: the solutions (DAC, 2022). To find out more about the practical realities of this funding, you can listen to the seminar at Garden Court Chambers on the Convention, where Dr Hannana Siddiqui, member of Southall Black Sisters, sets out its limitations.