Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Amendment) Order 2024
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Lord Bellamy
That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Amendment) Order 2024.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, this order is supplementary to what became Statutory Instrument No. 150 of 2023, which I had the honour of moving in this Room on 23 January 2023. That SI provided legal aid for the new procedures under the Domestic Abuse Act 2021, namely: domestic abuse protection notices, known as DAPNs, which provide immediate protection following a domestic abuse incident; and the new domestic abuse protection orders, known as DAPOs, which provide flexible, longer-term protection for victims.
Under that statutory instrument, legal aid was provided for a number of procedures in the family, county and criminal courts but, at the time, there was a small omission for advocacy in the magistrates’ court or on appeal from orders in the magistrates’ court to the Crown Court. This order simply fills that lacuna, which came to light in the course of working through both how this new regime was to operate and the complex provisions of Schedule 1 to what is known as LASPO to make sure that the legal aid regime covering these new orders was complete and comprehensive. We are simply filling a small gap in the regime that had not been spotted before.
This new statutory instrument before the Committee will ensure that legal aid is available for those proceedings. Let me go into more detail. The statutory instrument before your Lordships will make advocacy for those persons who are protected by a DAPO—or those who are subject, or potentially subject, to a DAPO—available under civil legal aid in magistrates’ courts. This form of civil legal aid will apply to DAPO cases where the application for the DAPO is made by the police in the magistrates’ courts. It will extend to appeals to the Crown Court and to applications to vary or discharge the DAPO in these courts. The respondent to an application for a DAPN will also be entitled to legal aid.
Your Lordships may recall that these procedures will for the first time enable these kinds of orders to be made by a range of courts, including magistrates’ courts, family courts, county courts and the Crown Court. In practical terms, they will make sure that the procedures and approaches to these orders mesh together, in view of the different courts that now have jurisdiction. This matter has been, and is being, worked through; as I understand it, a pilot scheme will be launched later this year to test the way in which these procedures will work. If your Lordships approve today’s statutory instrument, there will at least be a comprehensive legal aid scheme covering the procedures envisaged by the 2021 Act. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for introducing this welcome SI. We are happy that the lacuna has been addressed. I disclose to the Committee that I am a magistrate in family and criminal courts, and I occasionally have DAPO hearings, at which both the applicant and respondent are often unrepresented at the moment, so I welcome this situation being addressed.
The Minister mentioned a pilot starting, but I was not quite sure to which he was referring. Is it the one in Croydon, which I have been told about? As I said, I hear domestic abuse prevention orders when I sit at the moment, so is this a development in the existing orders I already hear? I am not quite sure to which pilot he refers.
I also make the point that family courts hear non-molestation orders now. These may be replaced by DAPOs, and we welcome the meshing together of the various civil orders across different jurisdictions.
I want to raise a separate issue, which I am afraid I did not have the foresight to give the Minister notice of. Last year, on 24 July, I wrote to the noble Lord, Lord Sharpe, about updating the information that must be disclosed on enhanced criminal record certificates. I gave the example of domestic violence prevention orders —not domestic abuse prevention orders—and what would happen if such an order were put in place. It is clearly not a criminal order but, if it is breached, it is a criminal offence and it would appear on a criminal record check. I will not go into the details of the case on which I wrote to the noble Lord, Lord Sharpe, but he gave me a very comprehensive answer on that issue, on 5 October. My point is that the answer was a complicated one—in fact, I will give the concrete example, because it is difficult to explain this without doing so.
I was hearing a domestic violence prevention order, and the applicant was a woman who wanted the order made against her former boyfriend. The applicant’s lawyer was a part-time judge and she was paying him privately. The applicant’s lawyer said to me that the best way to resolve this was with a no-facts finding, where an order is put in place, and that for a limited period the couple did not want to see each other any more. He said that it would be satisfactory to proceed in that way. The respondent heard the advice that I had received, and I explained that, if he were to breach the order, it would be a criminal offence. I asked what his attitude was to that course of action. The respondent said to me, “This is completely impossible for me because I am a primary school teacher. If I get this civil order, I will have to disclose it to my head teacher and I do not know what impact that would have on my career”. I gave him the advice to find a lawyer and fight the application. That is what actually happened, and that is the case that I raised with the noble Lord, Lord Sharpe.
Subsequent to that hearing, the legal adviser said to me that the primary school teacher would not have to disclose the matter to his head teacher because the legal adviser, as a solicitor, would not have to disclose an equivalent civil order to her professional body. It was therefore not necessary for the respondent to disclose this information. This was said after the hearing.
I was very cautious about accepting that advice, because different professional bodies will have different advice and, particularly when you are working with children, different and more stringent circumstances may pertain. I explained all this to the noble Lord, Lord Sharpe, and, as I said, he gave me a very full explanation of the situation in which that primary school teacher would find himself. In a nutshell, it is complicated. What that man has to disclose, as an obligation and what the order requires to be disclosed, is not straightforward.
Lord Bellamy (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for those comments. I think that I can reply briefly. I recall that on 23 January 2023—because I reminded myself of the passage in Hansard—the noble Lord raised the example of the teacher, and I am interested that there has been a follow-up, that the noble Lord, Lord Sharpe, has advised on this and that it is complicated. The point that the noble Lord, Lord Ponsonby, is making is that, the more we make these orders, and the more we create these procedures, the more complex it becomes. That is a fair point, and it is one that I hope the Government take account of as we go along, because there are unintended consequences to some of these things.
The underlying thought is that the existing procedures, such as they are, in the magistrates’ court and with the non-molestation orders in the family courts, needed a more overall approach. The family courts needed additional powers to order tagging and various other powers that, for the moment, are reserved to the criminal courts—so we have a comprehensive scheme, but exactly how it works is still to be worked through. In that connection, my understanding is that there will be a more detailed pilot, which apparently includes Croydon, Greater Manchester and the London Boroughs of Sutton and Bromley, as well as—for some reason—the British Transport Police, to work through some of those issues and the best way to deliver the legal support that is so important in these areas.
I entirely welcome and support the noble Lord’s comment that legal advice for all parties here is very important. I am not completely sure that the teacher in the example given would have qualified for legal aid, but at least there is now a structure there that should enable people to have legal advice on a wider scale than has hitherto been the case, now that we have plugged that gap.
That is probably as far as I can take it at the moment—save again to say that, as we create all these different procedures, processes and possibilities, up to a point we risk bogging the system down in all kinds of other complexities. That is, I am afraid, the cost of proceeding down this road.
Baroness Hamwee (LD)
I had expected to be able to continue doing what I was doing while the debate on this order took place but I was fascinated by the example that the noble Lord, Lord Ponsonby, gave. I would just make the rather obvious point about the importance of wide consultation when arrangements are being brought in, in order to avoid the unintended consequences to which the noble and learned Lord referred. Nobody can have enough imagination to anticipate all the intended consequences or consequences that might be less desirable than others but I have noticed recently that, for a number of SIs, the Explanatory Memorandum has said that there has not been any consultation because it has not been necessary.
Lord Bellamy (Con)
I am sure that the noble Baroness’s point is well taken. I very much hope that the pilots I mentioned will sort out the unintended consequences, or at least minimise them.