Civil Legal Aid (Procedure) Regulations 2012

Wednesday 27th March 2013 Lords Chamber

Motion to Regret

13:00

Moved by

[Baroness Grey-Thompson]

That this House regrets that the Civil Legal Aid (Procedure) Regulations 2012 (SI 2012/3098) fail to deliver sufficiently wide access to legal aid services for disabled persons; and that the category of “exempted person” is defined too narrowly.

[Baroness Grey-Thompson]

My Lords, I spoke extensively on the telephone gateway during the passage of the legal aid Bill. I feel a sense of disappointment in tabling this regret Motion as I am left with many concerns about access and operation.

The mandatory telephone gateway will require those seeking legal aid to call a telephone operator service and then be assessed over the telephone to decide whether they can receive advice under the legal aid scheme. It is a great shame and a missed opportunity that the regulations were not open to consultation. However, I thank the Minister for his offer yesterday to visit a gateway operator and to see the system in action. I shall take him up on his kind offer. I also thank him for his willingness to meet and discuss this issue and for the opportunity to speak with his advisers, who clarified a number of points.

For many people the telephone service is welcome and can be a valuable part of the whole picture. For those in scope, those with simple cases and those who find it easy to use the phone it is hard to see any issue. However, because of the massive changes in legal aid, I still have a number of concerns about whether people will even get as far as the operator service; whether the operator service will prove competent to handle complex legal questions around scope and eligibility; and whether face-to-face services will realistically be available to those who are entitled to them.

The Legal Services Research Centre, the independent research division of the Legal Services Commission, found that telephone advice takes on average 14 minutes longer than face-to-face advice and provides a smaller proportion of tangible outcomes. In 2011 it was open to debate whether the economies offered by the lower overhead costs of telephone provision would be sufficient to offset the cost generated by higher advice times. I would like reassurance that the companies which will be undertaking these services will have the appropriate number of staff to deal with the inquiries.

The Ministry of Justice cumulative impact assessment of 21 June 2011, page 24, paragraph 1.7, stated that the overall proposals have the potential to impact a greater proportion of women, black, Asian, minority ethnic people and ill or disabled people. In my opinion, nothing has really changed.

In the three areas that have been selected for telephone gateway—special educational needs, discrimination and debt, although it is perhaps best to describe it as home repossession—the Government have picked some very challenging areas to test out. In certainly the first two groups, SEN and discrimination, cases are often extremely complex and there may be many wider issues at play as well, such as benefit appeals, which may muddy the waters. I am sure the Minister will offer his reassurance that in the case of SEN the Children and Families Bill will sort out many of the existing problems. However, in Wales the education system is different. It has its own tribunal service and so two systems will need to be understood. The cases with which I am being presented by parents show that it is not a simple matter. It is emotive, and local knowledge is essential.

In the area of discrimination, often many disabled people do not even realise that they are being discriminated against because, at a low level, it is such a regular occurrence that it is accepted, wrongly, as the norm. It might be only when other issues are being dealt with that a person could realise that they were also experiencing discrimination. With the telephone gateway this may be missed. Discrimination will not disappear, it will be just be hidden.

I know this because I experience discrimination at least every week of my life. I am talked down to, patted on the head, treated differently and refused access to goods and services that many take for granted. I am in a better position than many and possess the skills to cope with it and the ability to deal with it. Many disabled people are not.

Hate crime figures against disabled people are at their highest level in 10 years of reporting. A joint study by Her Majesty’s Inspectorate of Constabulary, the Crown Prosecution Service and the National Probation Service published last week argues that there is underreporting of offences. However, it acknowledges that there is no clear and uncomplicated definition of what constitutes disability hate crime. There is a lack of awareness and inconsistent reporting standards.

The report goes on to say that CPS lawyers display a lack of clarity in identifying and analysing offences. I know that this is slightly at a tangent but, if the CPS lawyers are struggling, how is a newly trained, non-lawyer telephone operator going to cope when there are other issues to deal with as well? It is a huge amount of pressure on those individuals operating the system on the front line.

There are also a number of idiosyncrasies in the proposed system. If someone arrives at citizens advice looking for help—which is a very sensible place to go because citizens advice will have some legal aid capacity—even though the adviser is there, the receptionist would have to direct the person to the telephone gateway. They might use the telephone at the citizens advice office but then the receptionist would have to call the CLA to make an appointment for the client with a person sitting in an office 10 feet away. Does this not seem a little odd and strange?

The Law Society provided a useful example as it applies to mortgage repossession cases. It is not uncommon for a lawyer under the duty scheme to see someone at a court and for the hearing to be adjourned for negotiations to take place between the lender and the borrower. Very often a new hearing date will be set for two to four weeks hence. At present, the adviser will take on the work as a new case under a legal aid contract, undertake those negotiations and hopefully return to court with an agreed position at the adjourned hearing. If the position is not agreed, the adviser will be there to explain the negotiations and the stumbling blocks to the district judge.

From next week, the adviser will not be permitted to do this. Instead the case must go through the mandatory telephone gateway. This will involve duplication of work as the telephone adviser will have to go through all the information that the duty lawyer already has. It is possible that the telephone adviser may sign off the case as needing face-to-face advice and refer it straight back to the duty lawyer, but this is by no means certain. The client may well have to post papers to the telephone adviser as well as dealing with legal aid means forms by post. Once those formalities have been disposed of, the telephone adviser will then have to conduct the negotiations, having lost several days. It may or may not prove possible to conclude negotiations before the adjourned hearing but it is less likely than if the duty lawyer took on the case. The client will then return to court, again, hopefully, with an agreed position. However, if the position is not agreed, the case will have to be picked up once again by a duty adviser, who will then have to duplicate the work done by the telephone adviser to find out what happened in the negotiations. I am not a lawyer, but this seems to be more complicated rather than less.

This scenario has been confirmed by the Ministry of Justice as being possible. People with complex issues could find themselves being directed to a face-to-face for one part of their problem, a phone gateway for another one, then passed to the second tier, which could then direct them back for a face-to-face—and if you want benefit advice as well, good luck to you. Can the Minister clarify that the best way for a person to find out if they are exempt from the gateway, if they do not have access to the internet or may struggle to follow the guidelines issued by some of the charities, is to call the gateway, the one thing they know they have problems with?

Yesterday, the Minister and his team provided some reassurance over the provision of British sign language interpreters or potential webcam interviews. Perhaps the use of technology could be explored to allow more face-to-face contact. It certainly would be useful to have clarity about the number of webcam interviews it is possible to conduct and how people will be informed that it is possible, especially if they do not have direct access to the internet. Perhaps the Minister will offer a reassurance that these services will genuinely be open to those who need them.

On the issue of third parties, I was disappointed that this was not covered in the regulations; however, it is in guidance. Proving the identity of a third party and whether they have an unconflicted relationship will not be easy and I have many unresolved difficulties with this area in particular. Face-to-face interviews would be able to pick up on the nuances of the relationship.

If finally, after going through all these hurdles, someone is granted a face-to-face interview, can the Minister offer reassurance that travelling distances will be reasonable; that services such as British sign language interpreters will be provided if necessary; and that the centres will be accessible. We have seen in work capability assessments that a number of disabled people have been sent to interviews where they cannot even get into the building, park within a reasonable distance or even use the toilets. I cannot imagine anything worse than beating down all these barriers to get to a face-to-face interview and then find that it is not accessible.

The monthly data that will be collected are vital to improving the system but a more in-depth analysis is essential. On closer thought, comparing it to the per capita rate of disabled people in the population is a little crude. Currently data on disability, if held, are held only if the client wishes them to be supplied and included on the form. It is very difficult to compare what is happening now to what will happen in the future.

Last year, the Royal Mail launched a report, which I worked on, showing that 4 million disabled people had never used the internet. That is a worrying figure. Even if it is dropping, it highlights a major concern that I have about how people are going to be signposted to some of these areas.

Trust is important in building up the success of this service. At a time when the welfare system is going through big changes, signposting has to be effective. Many people are worried about explaining themselves on the phone. The same group might be reluctant to send off their paperwork, regardless of the free postage. Indeed, what if they do not even have the paperwork that is required? How does the operator know that the person has understood what they are being asked to provide? I have spoken to a number of solicitors working in this area and they all say that many people do not present in a coherent manner. Measuring the length of a phone call is one way to assess the service, but would it not be easier to look someone in the face? While the previous system might not have been perfect, it was straightforward and people knew what they had to do. The rules for the new system are more complex. Operators might ask some or all of the right questions, but so much is being left to the judgment of the individual operator.

I want to talk about exceptional funding only briefly because it is very complicated. Can the Minister provide a reassurance that the operator will inform people of when they have the right to apply for exceptional funding? Equally important, will they be told that they have the right to have their information checked or to be able to speak to a supervisor if they are turned down for access to legal aid in the first phone call? The Ministry of Justice is expecting around 6,000 people to apply for exceptional funding, and I would be interested to know what analysis has been made on the current thinking behind this.

I realise that I have asked a lot of questions but, ultimately, I believe that the current definition is too narrow. I would like to ask the Minister to amend the definition of those exempt to include disabled and vulnerable people. We could be in danger of not providing people with the help they need. These are some of the most vulnerable people in society and they will not even get to the first phone call. Instead of making the system easier, we could just be pushing the costs somewhere else and making the lives of disabled people infinitely harder. I beg to move.

[Baroness Scotland of Asthal]

My Lords, I rise to speak to my Motion, which regrets that,

“the Civil Legal Aid (Procedure) Regulations 2012 … fail to deliver on Her Majesty’s Government’s expressed promise to provide adequate legal aid provision for victims of domestic violence; that significant numbers of victims will not be able to satisfy the evidential criteria, contrary to Her Majesty’s Government’s expressed intent, resulting in a diminution of access to justice; and that, as a result, domestic violence victims will be exposed to an increased risk of injury and death”.

I should say straightaway how much I regret the necessity for this regret Motion. I thank all those who battled so hard on all sides of the House to make the regulations and, indeed, the Act more palatable in relation to the victims of domestic violence, and I would particularly like to remember Lord Newton of Braintree. He was not with us when we debated the amendment on the Tuesday before this matter went back to the Commons. Had he been in the House, the tied vote of 231 to 231 would, I hazard to say, have gone the other way.

I accept entirely that the regulations pursuant to the Act purport to implement that which was decided during the debates, but we need to be very clear indeed that Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 is now to be the gateway through which the victims of domestic violence must pass if they wish to receive legal aid, but it is a very narrow and treacherous gate. It will exclude many victims who have hitherto benefited from the legal support and assistance necessary to free themselves and often their children from the worst excesses of domestic violence.

13:15

I know that the Government purport that this is not a consequence they intend and I accept the words of the noble Lord when addressing this House. He has said that the risks will not be greater and that the assertion is entirely untrue. I accept that that is what he hopes, but that hope has to be predicated on an evidential basis. My clear submission to this House is that there is no sound basis upon which such a hope can truly lie. The Government themselves have made clear that they understand the true nature of domestic violence. Indeed, that very nature was acknowledged and powerfully set out by the Home Secretary in her ministerial foreword to the Call to End Violence against Women and Girls: Taking Action—the next chapter, in which she states:

“Each year, over one million women suffer domestic abuse, over 300,000 women are sexually assaulted and 60,000 women are raped. Shocking statistics. But these crimes are often hidden away behind closed doors, with the victim suffering in silence. Fewer than one in four people who suffer abuse at the hands of their partner and only around one in ten women who experience serious sexual assault report it to the police”.

I agree with her. Furthermore, I know that the Government assert at paragraph 2.145 of the equalities impact assessment that:

“For these reasons, the Government has decided that ancillary relief and private family law cases should be taken out of scope, with the following significant exceptions: legal aid will continue to be available for victims of domestic violence and for the protective party in cases involving child abuse”.

If that is what the Government intend, I have to say with sincere and even more regret that they have bitterly failed.

These regulations, if and when implemented, will make it difficult if not impossible for significant numbers of domestic violence survivors to satisfy the evidential criteria. The evidence gateway ignores the fact that most women do not seek or obtain statutory measures when fleeing domestic violence. That is a fact which was acknowledged in the foreword by the Secretary of State for Home Affairs, who is charged by the Government to be one of the champions of women in such situations. The National Federation of Women’s Institutes carried out research as far back as 2009 which found that 30% of women who had experienced a form of violence against them told no one about it, and that those who had told someone were more likely to have disclosed experiences of violence to friends or family than to statutory or voluntary sector agencies. Many of these women simply run away, too frightened to go to the police or the statutory authorities and too frightened to take advantage of the current opportunity, before these regulations come into force, to get an injunction. They run and they hide.

However, many of those women are found, sometimes long after the two years in which they experienced the direct violence. Their violent partner, having sought them out and found them, then brings proceedings in relation to residence or contact with children. We know that they are there in their numbers. All genuine domestic violence victims who find themselves in this tragic situation currently have the benefit of legal aid because it is provided through family legal aid. The gateway that limits the opportunity for those women to two years totally ignores the statistical information which demonstrates that the situation of women living in fear can continue for anything up to five years.

A Rights of Women survey of women using the Welsh Women’s Aid member services in December 2011 found that only 33.4% of women said that there had been criminal proceedings for a domestic violence offence or child abuse offence against their perpetrator. Of those women, only 21.5% had seen their perpetrator convicted of such offences. Only 25% of women accessing the Women’s Aid member services had applied for injunctions under either the Family Law Act 1996 or the Protection from Harassment Act 1997. Only 36.4% of women using Welsh Women’s Aid member services had been referred to a MARAC and had a plan in place to protect them from such violence.

I hope that the noble Lord will forgive me for being a lawyer, because lawyers tend to look at evidence, but the figures from the Women’s Aid England annual survey 2011-12 show that an estimated 19,510 women and 19,440 children were accommodated in refuge services during that year. However, an astounding figure of 139,100 women accessed outreach services as victims of domestic violence and would therefore not have the required evidence of admission to a refuge—139,100 women. On 14 June last year, 180 women were turned away from refuges because they could not be accommodated. How does the noble Lord say that these regulations will assist those women? They would not have been allowed into a refuge. Many of the refuges now are full and therefore they would not comply.

The survey went further. Of the women in outreach services, 58% had called the police at least once, but only 24% of their perpetrators had been arrested and charged; 22% of women in outreach services had never reported it to the police; only 38% had applied for protective injunctions such as a non-molestation or restraining order; and of the 33% involved in family proceedings, 80% were receiving legal aid. Under these regulations it would seem that the 80% of the 33% who were receiving outreach services will, from 1 April, get nothing. All our research shows that without legal services and representation, women will be deterred from accessing the legal remedies that could help them to escape violent relationships. Women are more likely to feel unable to take legal action when they need it because they feel that their situation is just too stressful to sort out or they are too scared to act. Some 69% of women responding to a Rights of Women survey reported that they would be deterred from legal action about their problem if they were not eligible for legal aid.

I express an interest because, of course, I have had the advantage of representing such women over the course of my career since 1977. We need to be very clear about the real-life consequences of the changes that are contained in these regulations when they come into force on 1 April and the fear with which they are viewed by those who work with victims and by victims themselves. Women’s Aid, Rights for Women, the Law Society, the Legal Aid Practitioners Group and innumerable others have written to me, as I am sure they have written to many other noble Lords in this House. They have raised their voices in alarm about the consequences that will flow from these regulations. Women and children will be at risk of further violence, and indeed death, if they are not able to access family law remedies. Women are at a higher risk of violence and of being killed after leaving violent partners, which is the most dangerous moment. Domestic violence continues long after the relationship has ended—76% of separated women experience post-separation violence.

I will tell the House about just one case which has come to attention—it happened only a couple of days ago—to bring some of this to light. One practitioner told us of a woman whom they saw last week. She was Bengali and was made to marry her first cousin in the United Kingdom. She was kept under house arrest and isolated from her family. Her every decision was taken from her, including when she had sex and how many children she had. She was not allowed any form of contraception. She was not allowed out of the house. There was no physical violence—no medical report, as she never went to her GP without her in-laws—and no police evidence as there was nothing physical. She is pregnant with twins, has two children under two and was treated as a domestic slave. She managed to flee her family but her husband and mother-in-law have now applied for a residence order. From 1 April—from next week—she will not qualify for legal aid. Does the noble Lord wish to refresh the comments he made about the likely consequences of these regulations?

I can give so many examples—sheaves of cases are being sent forward by lawyers from all over the country asking, “What are we going to do?”. On the empirical evidence currently available to us, it is clear that these regulations will have a disproportionate impact on women. The Legal Services Commission’s own figures verify that. They show that more women than men apply for family law legal aid. Calls to the community legal advice helpline show that in the area of family law, approximately twice as many women as men seek advice. There is significant concern that this may place the United Kingdom, which has hitherto proudly been seen as an exemplar in the fight against domestic violence against women, in breach of Articles 1, 2, 3, 5, 13, 15 and 16 of its international convention obligations under the UN Committee on the Elimination of Discrimination against Women, and that we will be subject to inquiry before CEDAW at the UN in July this year. As such, we are at risk of besmirching the regard in which we have hitherto been held. The Government’s report on adherence to CEDAW for the July inquiry makes no mention of the LASPO Act. Can the Minister advise noble Lords on how the Government propose to deal with this legitimate concern?

I would like to ask the noble Lord very briefly whether he can clarify some specific areas. Even as the regulations stand, there appear to be a number of anomalies. First, can he confirm whether practitioners will be able to apply simultaneously for an injunction and other orders as appropriate, or will they have to make separate applications? The noble Lord will know that when a non-molestation application is made currently, it is quite often made in conjunction with residence orders and other ancillary orders for children. If there have to be two separate applications, additional expense, time and worry will be incurred. I cannot believe that that is what the Government want, not least because of the importance of costs in this regard.

13:29

Secondly, will the Minister clarify the issue in relation to cross-undertakings? The guidance, which was produced before 1 April, does not make it clear that a cross- undertaking means a cross-undertaking broadly equivalent to that given by the perpetrator. The situation I envisage is where the perpetrator agrees not to assault, molest or otherwise interfere with—normally—the woman but the woman agrees to pay the rent on the property which had been previously been in their joint names. I should be grateful for that clarification.

Thirdly, will the Minister clarify whether the Government intend to introduce a system equivalent to that which we have in the criminal courts which prevents the abuser cross-examining the victim? We have heard of cases where that is already happening. Many women have said that they would not pursue proceedings if they were going to be cross-examined by the perpetrator. Can something be done about that?

We have agreement that the two-year time limit should be extended. Would the Minister be prepared to amend the guidance further to provide, “or within six months of the date on which the parties cease living together as husband and wife”? I think particularly of cases where the wife and husband may have continued living together after an injunction was put in place but, by the time they separate, it is more than the two years since the first incident occurred.

Lastly, would the Government be prepared to review the evidence requirements after three months and commit to amend them as necessary if there is evidence that genuine victims of domestic violence are being excluded by them?

I should reassure the Minister that those who are assisting victims in this sphere are trying as energetically as they can to reassure victims that some legal aid is still available but I have to tell the House that, increasingly when victims come forward, the answer that they will be given by a number of practitioners now is, “I’m sorry. Legal aid is not available to assist you”. I bitterly regret that reality and I know that, all around the House, we have always been together on this. This issue has never divided Members of this House no matter on which Bench they sit. I hope that the House as a whole will feel that it bitterly regrets the situation that we now find ourselves in.

[Lord Beecham]

My Lords, I am pleased to join my noble and learned friend Lady Scotland and the noble Baroness, Lady Grey-Thompson, in expressing concern and regret at the situation which potentially confronts so many people in both the categories to which these Motions refer. The Motion of the noble Baroness, Lady Grey-Thompson, refers specifically to,

“legal aid services for disabled persons”,

and goes on to state that,

“the category of ‘exempted person’ is defined too narrowly”.

I am sure she will agree that, hugely important though the needs of disabled people are, other people without a disability as such will also potentially lose out under the new processes. I refer in particular to the concerns that she expressed about the gateway as opposed face-to-face advice. That will be a serious matter.

By sheer coincidence, looking at a news programme this morning, I saw a report of a benefit claimant—I think he was from Barnsley; it was somewhere in Yorkshire at any rate—who has been sanctioned for not applying for a job, but the basis of that was that he had not applied online. Apparently, it is necessary in that area to apply online. The claimant has never used a computer; he does not know how to use a computer; he was not, incidentally, given any advice about how to use a computer by the jobcentre; and he was sanctioned. That is a different context, but it underlines that, despite the fact that many of us are up to a point familiar with modern technology—I do not profess any particular expertise myself in this area—many other people are simply not used to it. That is particularly true of those with perhaps less of an educational background and less experience of, for example, conducting financial transactions in that way. More generally, they might be limited in their vocabulary or not speak English as a first language, as the noble Baroness pointed out, or in other ways find it either impossible or difficult to access advice online.

The noble Baroness made a valid point as well about third-party representation. It will be interesting to hear the Minister’s views on how secure and effective that is likely to be as there are clearly concerns about whether a third party can effectively represent someone remotely. The Minister rather casually dismissed the question of remoteness in our previous debate. The noble Lord shows his dissent. Well, perhaps I am being unkind to him and I withdraw that. However, he did seem rather to play down the potential problems of physical remoteness from the source of advice. Those of us who professionally or otherwise have engaged with people over the years in our various capacities—as lawyers, as people in the voluntary sector or as elected politicians—will know that face-to-face contact is very important and by no means everyone has access to that kind of remote-access technology.

There is another question about remote access that I want to put to the Minister. At the moment the system is that an applicant will make a telephone call and the person at the other end of the line will offer to call back. That seems to be an unnecessary complication. First, the call-back method is not always easy or reliable as there may well be problems in returning a call. Secondly, the initial cost will fall on the applicant. Will the Minister undertake to look at making this a freephone service rather than a system where one has to pay and then, one hopes, receive a call back?

I am concerned that serious problems in relation to the gateway and the whole area of access will be experienced over the next few months. I am sure that the Government will be monitoring this, but it would be good to know a timetable within which they will look at how the system is working and how they propose to do that, whether nationally or on a regional basis.

In relation to my noble and learned friend’s important Motion on domestic violence, I begin by referring to an interesting observation made by the president of the Family Division, Sir James Munby, giving evidence to a Public Bill Committee in the Commons on 5 March. Addressing the issues of legal aid in family law, he said:

“Coming back to the specific question that we are concerned with today, everybody who is involved in the family justice system is necessarily very concerned about what will happen in four weeks’ time, when legal aid effectively withdraws from private law proceedings. We are, I am afraid, unprepared for that. When I say ‘we’, I am not talking about the judges; I am talking about the entire family justice system. We are prepared for the changes to public law that are being phased in over the next 12 months, but we are desperately unprepared for what is going to hit us in four weeks’ time”.—[Official Report, Commons, Children and Families Bill Committee, 5/3/13; col. 31.]

That is a remarkable statement by the president of the Family Division, and it would be interesting to know what response the Government make to it.

It seems that, potentially, chaos will strike in this very important and sensitive area of law, not in four weeks’ time but next week. Judging by the experience of some other government changes to our legal system—for example, the issuing of proceedings out of a single county court, which happened last year—we can expect considerable difficulties. That has been a most unhappy episode, which is still not totally resolved. Of course, this now becomes an area not simply of ordinary court proceedings, but very sensitive, difficult and often urgent matters that affect people’s lives very closely—the lives of vulnerable people, in particular women, and of course children. I therefore hope that the Government will pay some attention to the very important strictures and concerns of the president of the Family Division, Sir James Munby.

There are a couple of other issues on which it would be interesting to hear the Government’s present views. Reference was made by the Minister to the cost of obtaining evidence from GPs. It is thought that this might amount to some £50 or £60. The Government may well be looking at alternative forms of evidence that might be suitable, but as I said, this process starts in a week’s time. It would be interesting to learn how far the Government have got in producing a suitable procedure for people to follow. This is a significant issue because almost by definition many of those who may want to seek legal advice and take legal proceedings —now without the benefit of legal aid unless they can prove in the context of domestic violence that they are exempt—will find it very difficult to find £50 or £60 to pay their GP. I understand that the Government are in discussion about this with the BMA, which is apparently unhappy, as a matter of principle, about the expectation that family doctors, and perhaps other doctors, should be producing reports at all for this purpose, while the Royal College of General Practitioners has taken a more constructive attitude. Can the Minister update us on where we are in that context? I can understand the situation where a GP is perhaps a family doctor to both parties and therefore might be in a position of some conflict, but in general it ought to be almost axiomatic that a doctor would be prepared to give evidence—no doubt brief evidence—which might assist a woman, or man for that matter, who is claiming that he or she has suffered domestic violence.

The other aspect is that the whole rationale of the Government’s approach to family law is that mediation is a better answer; it is less formal and less expensive. I have said before, and I repeat, that in my experience as a practising solicitor who did some family law work, it is all very well to talk about mediation where there is a rough equilibrium in the position of the parties in terms of their psychological strength or financial resources. It is rather different in many cases where one party is so much stronger than the other. Therefore, mediation is not necessarily the best or only way. In any case, it has always been available. The other aspect is that it would appear that only 5% of family law cases are contested. In other words, matters are being resolved without ending up in court. The support of qualified legal advisers is essential to secure those outcomes in general in terms of family law. But in particular it is important that people should be adequately represented where domestic violence is part of the scene. As my noble and learned friend pointed out, the conditions under which such victims would be able to be categorised as exempt and obtain legal advice are, on the face of it, certainly too narrow. At the very least I hope that the Government will undertake to review how things are going, sooner rather than later, because, as my noble and learned friend pointed out, we are talking potentially not only about serious injury but about death—about people, mostly women, being killed as a result of domestic violence.

Obviously the Government do not want that to happen. Of course they do not. However, there is a danger that it may happen if the Government do not respond quickly and effectively to any issues that arise in regard to obtaining access to proper advice and representation in these highly sensitive areas. In those circumstances, if the noble Baroness and my noble and learned friend intend to test the opinion of the House, from the opposition Front Bench I will certainly be calling on colleagues to support them.

13:45

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, when the noble and learned Baroness, Lady Scotland, sat down, having made her usual very powerful indictment, there was a growl of approval because across the House there is an abhorrence of domestic violence and a desire to help the vulnerable, particularly the disabled. However, I ask the House not to take that sympathy into an assumption that all this is being put at risk by a callous and uncaring Government. As I pointed out before, the legal aid bill will still be running at something like £1.7 billion when all this is over, and criminal legal aid is now at just over £1 billion. However, I will not start quibbling over figures with the noble Lord, Lord Bach, as he demonstrated his command of figures earlier in his speech.

I contest, and worry about the impression that will be given because of strong campaigning, that legal aid is somehow removed from these areas. I will try to deal with the points that were made by the noble and learned Baroness Lady Scotland and the noble Baroness, Lady Grey-Thompson. I will also address the points made by the noble Lord, Lord Beecham, which were made with his usual quiet courtesy. The point that I made about remoteness, which is a cold, hostile kind of word, is that we underestimate what new technologies can do to help with access to justice. That is the point I was making. On the point he made about mediation, I certainly am not overclaiming for it. Mediation is certainly not a cure-all. However, I thought that he threw in one very interesting statistic: only 5% of family law cases are contested. That is worth keeping in mind.

On the points made by the new president of the Family Division, I have been in this job long enough to give due deference to the separation of powers and the opinions of the judiciary. Of course, he is right to be very concerned, but I am not sure that the term “desperately unprepared” is fair. I know the amount of effort that has gone in, in my department, to make sure that these changes can be introduced as effectively as possible and that the help we want to give is given to the people who need it.

I will deal first with the points made by the noble and learned Baroness, Lady Scotland. Perhaps I should clarify, for the benefit of readers of Hansard, that perhaps my opening remarks should not have been made and we should have gone straight to the noble Baroness, Lady Grey-Thompson. So my reply came at the beginning of the debate. My plea is that I have been in the House for only 15 years and am still getting used to some of its more arcane procedures. Although my reply was all-encompassing, it probably did not address some of the specific issues that were addressed by the noble Baroness, and by the noble and learned Baroness. Therefore, I will do that now.

Because the noble and learned Baroness, Lady Scotland, deploys such ferocious talents in making a case against what the Government are doing, I worry that she will lead vulnerable women affected by domestic violence into the fear that somehow legal aid will not be available. I am sure that that is not her intention, but it could happen. I will point out that in the regulations that have been published there are 10 separate, distinct qualifications for legal aid. I will not trouble the House by reading them all. They are very precise, and it is simply not true to say that women who are subject to domestic violence will not be able to get legal aid. They will be covered by a wide range of qualifications for entry through the gateway. We should let the system start.

In answer to the point made by the noble Lord, Lord Beecham, and others, we will monitor the impact from day one.

[Baroness Corston]

My Lords, is the Minister suggesting that my noble and learned friend Lady Scotland is either scaremongering or not telling the truth?

[Lord McNally]

The noble Baroness is putting words into my mouth. When you start talking about death and saying that people will die because of this, it raises the temperature. The noble and learned Baroness is entitled to make her point—and I certainly would not like her to prosecute me. However, there is a case for the defence and I will try to make it. Part of the case is that the regulations we have set down have 10 specific areas that will qualify women for help in domestic violence cases.

In making her case, some of the figures that the noble and learned Baroness gave went beyond the issue of providing legal aid in family law cases to the much wider problem, which we all acknowledge, of domestic violence and violence against women in our society. It is unfair to use the figures and statistics for domestic violence in general to imply that in the specific and narrow area of legal aid in family law cases there is not a wide range of provisions. I refer the House to the Civil Legal Aid (Procedure) Regulations 2012. For the benefit of the House, perhaps I can write to the noble and learned Baroness and put a copy in the Library, setting out the various qualifications for access to legal aid in domestic violence cases that there will be under our reforms.

Both the noble and learned Baroness, Lady Scotland, and the noble Lord, Lord Beecham, raised the question of a possible £60 charge. We have been in negotiation with the professional organisations. As was rightly said, the BMA has raised questions. However, we are asking applicants to provide a simple, standard template letter from a doctor or a nurse—not a medical report—and we see no reason why the charge for a letter from a GP should be more than a simple administration fee. We have arranged for communications to go out from the Royal College of General Practitioners, emphasising that GPs should respond as rapidly as they can and be as sensitive as possible to the needs of applicants. I invite the BMA to give similar guidance as part of its contribution to dealing with these issues.

The case cited by the noble and learned Baroness, Lady Scotland, was certainly harrowing. It is impossible for me at the Dispatch Box to deal with this kind of case. From what she described, I would be surprised if, even under our reforms, there would not be access to legal aid, including a protective injunction that could be applied for in the circumstances that she described. On the question of evidence requirements, we will keep them under review and would welcome evidence of how they are operating.

The noble and learned Baroness raised the issue of simultaneous orders, and whether one could apply for separate orders at the same time. It is possible to combine such proceedings. However, the funding may not be available for the entirety of the proceedings. Funding is available for non-molestation order applications, but in order to receive funding for a matter falling within paragraphs 12 or 13 of Part 1 of Schedule 1 to the Act, the applicant would need domestic violence evidence. I gather from the briefing that I asked for that the noble and learned Baroness may be right: there may have to be two trips. Certainly we will look at whether that will add costs and time to the process.

Are we putting training in place? The Department of Health has worked with the Royal College of GPs to develop an innovative e-learning course on violence against women and children. The course was launched in Liverpool in October 2011. It consists of four modules that aim to help clinicians provide an appropriate healthcare response to domestic violence. There is a similar training for police to spot evidence and act on it.

On the point about cross-examination, judges have certain powers to address the situation, including special measures if necessary: for example, by intervening to prevent inappropriate questioning or by having questions relayed to the witness rather than put directly. The noble and learned Baroness asked about access, and whether there would be an identifiable person co-ordinating complaints of domestic violence in each area. The answer is yes. The guidance provides for links to be provided to the relevant multiagency risk assessment conference, which will be chaired by someone who will take direct responsibility in that area.

The noble and learned Baroness, Lady Scotland, mentioned the problem of women’s refuges being full. It is right that, at the moment, that cannot be used as evidence, but I should like to take that back as part of the early review. She also made the specific request about equivalence in cross-undertakings. There is no provision that cross-undertakings must be of equivalence. However, the cross-undertaking must be given under Section 46 of the Family Law Act 1996. Where it is a general form of cross-undertaking, which is not made under Section 46, but, for example, to aid the smooth running of proceedings, it would not count as a cross-undertaking, but there would have to be equivalence in the cross-undertaking. I hope that that makes it clear.

14:00

The noble and learned Baroness also raised the issue of the two-year limit. I recall our debates about where we draw the line. My advice is that a finding of fact provides an important safeguard. If the court finds that domestic violence is a factor, legal aid will be available. If there is a continued risk, legal aid is available for a protective injunction. Only one form of evidence is necessary. We are talking about an ongoing risk of domestic violence impacting on the applicant’s ability to represent themselves. The regulations deal with that. I will study the remarks of the noble Baroness and look again at the definitions. On the point about the UN convention, we are confident that we are not in breach.

I think I have covered most of the questions that I faced in my cross-examination. The noble Baroness, Lady Grey-Thompson, raised a number of issues which I will try to cover quickly. We are aware of the question of distance of travel and the provision of face-to-face providers. Gateway providers will always speak to clients to ensure that face-to-face advice is available as close to clients as possible. I also take the point that, in giving that advice, they should be aware of accessibility issues. I am glad that the noble Baroness has accepted my invitation to visit the telephone gateway system at Hinckley. I was genuinely impressed by the dedication of the staff and their determination to be positive and helpful to those using the gateway. The gateway is working with the Government Equalities Office to ensure that probing questions are asked to identify discrimination. I agree with the noble Baroness on her point about hate crime. It is rather like the issue of domestic violence; it goes wider than the regulations, but it is something to which this Parliament and this Government will have to return to address it properly.

On special educational needs, the Ministry of Justice is in discussion with the Department for Education to ensure that gateway staff have sufficient training. We are confident that we have sufficient numbers to meet demand but, again, from day one, we will be monitoring the situation. The noble Baroness made a point about webcams and Skype. I come back to the point that I made to the noble Lord, Lord Beecham. Obviously, there will be people who do not have access to them, but changes to the structure of advice services, and perhaps even public libraries, may mean that they have Skype and webcam facilities.

The noble Baroness, Lady Grey-Thompson, talked about housing possession. The duty solicitor will deal with the immediate issue at court. Those legal providers know to refer any follow-up work to the gateway. If the providers have a contract for debt advice, they can speak to the gateway on the client’s behalf and are most likely to be asked to take the casework forward.

On the point about the right to exceptional funding, all clients who are assessed as not being eligible for legal aid as the matter is out of scope will be advised about the potential availability of exceptional funding. That, I hope, is clear. On the points that the noble Baroness made about vulnerable people, I said as the Bill passed through the House that we are resistant to having a catch-all term of “vulnerable people”. The term “vulnerable disabled people” covers a wide range of individuals with particular needs and issues. Although some of those to whom the term might be applied may be unable to use the telephone or other methods permitted to give instructions and receive advice, others will. Many people who are extremely vulnerable or disabled will do so through a third party. At present, they have to wait for an appointment. The gateway will enable third-party access and will often be able to signpost those eligible for help on the same day.

We are confident that sufficient safeguards exist in the gateway to assist vulnerable people. The current helpline already has a process in place to allow an unauthorised third party to contact the helpline on an individual’s behalf and for checking that the third party has the authority to do so. Specialist telephone providers will also ensure that the third party is acting in the client’s best interests.

The noble Lord, Lord Beecham, asked about the callback option. The callback option works well now and is often requested by callers. It is important to remember that many clients already make initial calls to face-to-face providers.

[Lord Beecham]

My suggestion was that a freephone system might be adopted. Have the Government considered that; if so, will they consider it again?

[Lord McNally]

The noble Lord is quite right: the number will not be a freephone number. I will inquire whether that was considered. The point is that it is minimalist. Just to put it on the record, you can use the 0845 3454345 number and immediately ask for a call-back, so it is not that big a hurdle.

I have taken a lot of the time of the House. I have tried to answer some important questions. I hope that, in doing so, I have conveyed that we are dealing with issues of shared concern about protecting the most vulnerable in our society.

Throughout both these debates today, we were faced with making tough financial decisions, but I believe we have made them in a way that targets resources at the most vulnerable in the way that would be most effective. I would regret it if the Motions were pressed. I will note the opinion of the House, but I go back to the growl of approval that greeted the noble and learned Baroness, Lady Scotland. It is an approval that I share: we have got to make sure that in our approach to legal aid and the broader issues that encompass both, our aim must be to give priority to attacks on the broader causes of domestic violence and to ensure that there is legal aid available in family law. I believe that if noble Lords look at the way that women will qualify for legal aid, it will be very difficult to say that those provisions are not there.

On aid for issues of disability, I hope I have clarified some of the concerns of the noble Baroness, Lady Grey-Thompson. I hope she will go to Hinckley and see the gateway in progress. I can assure all sides of the House that as far as I am concerned, monitoring will start on day one to see what the impact of these changes will be. In that respect, I hope the noble Baroness and the noble and learned Baroness will not press their Motions.

[Baroness Grey-Thompson]

My Lords, I thank the Minister for his introduction and his response, which were, perhaps, wrapped up together. I thank the organisations that provided me with some amazing case studies and the individuals who have been in touch and explained the immense difficulties that they are currently facing.

In thinking about bringing this Regret Motion, I was fortunate to speak to my noble friend Lady Campbell, who is in her place, who shared some of her experiences of the Disability Rights Commission. It operates a telephone advice line and has perhaps some of the most highly trained people in disability and equity, and they experience difficulties in understanding people with speech difficulties, perhaps because they have cerebral palsy, or with multiple impairments, who speak in a different way. She was able to outline some of their difficulties in being able to clarify their issues. A number of solicitors I spoke to said that people do not present their problems in an easy-to-understand manner. Mind, the charity, which has been part of this discussion, said that it is exceptionally worried that many people with fluctuating capacity could be excluded. A number of organisations have communicated their fear about people being able to access the telephone gateway.

I am a huge fan of technology. It is amazing, it is great if you can afford it, and it is even better if you know how to use it. Young people seem to be born with an ability to make it work, but that is not the case for perhaps many of us. If I look around your Lordships’ Chamber, we have, if I can say it, some of the most privileged people and the brightest, and those with access to the best education, knowledge and experience, but I wonder how many of us use technology. Think about it if you are a disabled person, if you are alone, isolated, going through great difficulty and with immense problems that you are trying to explain to someone else. We have a very long road to enable disabled people and old people to access some of this.

I am very passionate about special educational needs because I went through it. I fought to get into mainstream school before there was a system in place. My father used a single line in the report by the noble Baroness, Lady Warnock. He threatened to sue the Secretary of State for Wales over my right to be educated in a mainstream environment. He was educated and financially privileged. I look round at many of the people who will be fighting for the same thing for their children, and picking up a phone and trying to explain their children’s complex needs does not make any sense to me whatever. I know the noble Lord, Lord Freud, and the Minister have both said, in relation to disabled people, that the Government want to help and support those with the greatest need. I do not believe that that is the case.

The Minister also talked about reasonable adjustments. That is all very well, but it does not measure those who do not or cannot make the first phone call. The fact that the phone number is not free will make it exceptionally difficult for a number of people who do not have credit on their phones and who just cannot even contemplate picking up the phone. I am afraid that I am completely unconvinced by the idea of the third party and the Minister’s faith in that working. I find trying to explain complex needs to somebody who will then explain them to somebody on the phone very frustrating and disappointing.

I still believe that the exemption group is too narrow and that disabled people will increasingly be hidden away. In 2013, disabled people will start becoming invisible as they did in the 1960s and the 1970s when I was young. That is a cost I do not think is worth paying. I wish to test the opinion of the House.

14:15

Division 2

Ayes: 163

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Labour: 117
Crossbench: 36
Independent: 3
Bishops: 1
Liberal Democrat: 1
Plaid Cymru: 1

Noes: 148

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Conservative: 100
Liberal Democrat: 42
Crossbench: 5
Democratic Unionist Party: 1