[Update Nov 13 : This blog post was written in 2011. If you’ve reached this post via a Telegraph article you (or even if you haven’t) you might like to read my more recent post on Clare’s Law].

Theresa May this week launched a long awaited consultation on so called Clare’s Law, about which I have written before in the Guardian. It’s proper name is the Domestic Violence Disclosure Scheme.

I’ve written about this before, when Clare’s Law was no more than a twinkle in a Minister’s eye. It’s helpful to have some more information to grapple with, although the proposals are much the same in broad outline as had been anticipated – a process whereby individuals can make applications to the Police for information, and a more proactive process whereby the police notify even those new partners who have not made contact with them.

I still have two problems with all of this:

Firstly, how effective will Clare’s Law actually be?

I speculated before that it would be unlikely to be massively effective, although of course one life saved is of immeasurable value. But it is worth looking at the Government’s own impact assessment which suggests a best case scenario of a 0.5% p.a. reduction in DV arising from the application aspect of the scheme and a best case scenario of a 1% reduction in DV arising from the proactive element. Great for the 1% but hardly earth shattering I venture. And read this extract of the impact assessment under the heading of “Risks”:

The Government anticipates that the following risks may occur with regards to a national Domestic Violence Disclosure Scheme:

– there is a low take-up of the Scheme

Should this risk materialise, the likely impact is that the costs of implementing a Domestic Violence Disclosure Scheme outweigh the benefits, particularly when the costs of the consultation, pilot, implementation and training of police and agencies are included.

11– there is a high take-up of the Scheme

Should this risk materialise, the likely impact is an increased burden on the police and MARACs to find the time and resources required to service the Scheme. Although no targets are planned should the Scheme be introduced, the Scheme may inhibit the police’s ability to redeploy front-line resources. In addition, funding constraints may inhibit the capacity of MARACs to support victims.

– there is a displacement of domestic violence

Should this risk materialise, the likely impact is that perpetrators of domestic violence will move on to new victims, so that crime is displaced rather than prevented. However, the new police national database may mitigate this risk over time as perpetrators can be “flagged” and made known to all police forces across England and Wales. With appropriate data-sharing amongst agencies, appropriate support can be given to perpetrators to stop their offending.

Which is kind of what I said before. Sigh: side effects and costs may outweigh benefits. And they’ve omitted the risk that people will be given the “all clear” where a violent partner has so far evaded justice, and that they will rely upon that information thereby becoming more vulnerable to becoming enmeshed in abusive relationships rather than exercising their own judgment.

And and and….significantly the consultation sets out that in essence the Police already have the power to do all of this anyway under the good old Common Law. Which rather begs the questions:

What difference will a shift of the source of the power to statute have?

and

Why aren’t the Police using those powers already?

and

What confidence can we have that the Police will deploy the resources to make this work in the future?

One of the key issues in the Clare Woods case was that the police had adopted an inconsistent and insufficiently risk aware approach to a pattern of behaviour reported by Clare Woods – the fact that the police already have these powers but don’t appear to exploit their potential seems to me to be highly relevant. Forces like Wiltshire where the ACPO lead on DV Brian Moore hails from are using the powers so why can’t this just be promoted as good practice elsewhere?

In addition the implementation of the new Police National Database means that even without these “new” powers or any national scheme local forces will be in a far far better position to pick up patterns of violent behaviour across constabulary boundaries and to risk assess effectively.

A cynic might wonder whether this is an exercise in demonstrating the Government’s credentials when it comes to domestic violence (credentials which have taken rather a beating of late – excuse poor taste pun), rather than a genuinely purposeful piece of new legislation.

To my second problem: how comfortably does all this sit with the Government’s attempts to cut legal aid in family cases, including the proposed barriers to access to legal aid for domestic violence victims and for those who have perpetrated or who are accused of having perpetrated that abuse?

In the foreword our favourite cat lady (leopard shoes, feline fibs etc) trumpets this Government’s committment to protecting women and children from domestic violence, which is described as “Domestic violence is rarely a one-off incident, and should instead be seen as a pattern of abusive and controlling behaviour through which the abuser seeks power over their victim.” Doesn’t sit very squarely with the very restrictive definition of domestic violence that the Government is determined to pursue in the LASPO Bill does it?

Theresa May says that “I have been clear that ending violence against women and girls is a personal priority for me and this government. Domestic violence is a particularly dreadful form of abuse and I want us to constantly look at new ways of protecting victims and preventing tragic incidents from happening.” That’s great Theresa. Can we assume from the position of your colleague Mr Djanogly that we can treat that personal commitment as one which is not shared by the rest of the Cabinet? “Stopping domestic violence is one of the most important tasks we face.” she purrs. Perhaps Theresa May will have a word in Djanogly’s shell like for us? Or not…

The final twist of the kitten heel is in the proposal is that allegations or intelligence about previous domestic violence incidents and intelligence about previous civil injunctions (eg non-molestion orders) may be given to an alleged perpetrator’s new partner. Those will be the allegations and injunctions in respect of which the alleged perpetrator has been denied legal aid and representation in order to defend himself against potentially malicious allegations. So any wrongly made findings could be revisited on the poor unfortunate every time s/he tries to make a fresh start. Nice touch.