Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Miscellaneous Amendments) Order 2025
(3 weeks, 3 days ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
Lord Ponsonby of Shulbrede
That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Miscellaneous Amendments) Order 2025.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, the draft instrument before us today makes a number of changes to ensure that legal aid continues to be available to those most in need and continues to serve some of the most vulnerable people in our society who need our support. It ensures that our legal aid legislation is aligned with wider government legislation on domestic abuse and immigration.
First, this draft instrument will make changes to enhance the scope of immigration legal aid. It will make legal aid available for those eligible to apply for settlement in the United Kingdom as a victim of domestic abuse under the Immigration Rules. This change will ensure that all eligible domestic abuse victims can access legal aid for applications under this immigration route.
Secondly, this draft instrument will amend the evidence requirements for domestic abuse victims applying for legal aid. It will do this by enabling victims to present evidence of abuse from appropriate medical practitioners overseas.
In addition, this draft instrument will make changes to terminology to align with the Domestic Abuse Act 2021, replacing “domestic violence” with “domestic abuse”, and “financial” abuse with “economic” abuse. This instrument will recognise that abuse against an individual may consist of behaviour directed at another individual, such as the victim’s child. These changes will ensure consistency with wider legislation.
Finally, this statutory instrument will make changes to complement instruments made in 2023 and 2024 in relation to the scope of legal aid for domestic abuse protection orders and domestic abuse protection notices. If enacted, this instrument will ensure fuller availability of legal aid for individuals in respect of these orders.
Before turning to the amendments in this instrument in detail, I will briefly set out how the legal aid scheme works. In general, civil legal aid is available to an individual if their issue is listed within Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which I will henceforth refer to as LASPO. Then, in most cases, an individual must pass a means test, which is a check on their financial eligibility, and a merits test, which is a check to ensure the taxpayer is not funding entirely unmeritorious cases. In certain cases, most notably those involving victims of domestic abuse or child abuse, evidence requirements must also be satisfied.
I turn to each of the four topics covered in this order. First, amendments are made to the availability of immigration legal aid for victims of domestic abuse who are applying for leave to enter or remain in the UK. Currently, legal aid is available for some victims of domestic abuse who are eligible to apply for leave to remain in the UK under the Home Office Immigration Rules, subject to the means and merits test.
The Immigration Rules set out the rules for entering and remaining in the UK. The rules include the Appendix Victim of Domestic Abuse, which I will henceforth call Appendix VDA. This concerns victims whose leave to remain in the UK was based on their partner’s or spouse’s immigration status and whose relationship has broken down as a result of domestic abuse. It is the route by which victims can apply for settlement in the UK, independent of their partner’s status, ensuring they can escape the abusive relationship without having to leave or be removed from the UK as a result. The eligibility requirements in Appendix VDA are amended from time to time.
This instrument amends LASPO to ensure that legal aid provision for victims applying for leave to enter or remain in the UK is aligned to the latest requirements set out in Appendix VDA. The changes will ensure that this alignment will continue in the event amendments are made to Appendix VDA in the future. This will mean that all victims of domestic abuse can access legal aid for advice to assist with an application for leave to enter or remain, under Appendix VDA, subject to means and merits tests.
Secondly, this instrument will make changes to the evidence requirements that victims of domestic abuse must satisfy in order to receive legal aid. Acceptable forms of evidence are set out in Schedule 1 to the Civil Legal Aid (Procedure) Regulations 2012. Currently, certain forms of overseas evidence are accepted as evidence of domestic abuse. For example, legal aid applications may include supporting documentation concerning an arrest or police caution abroad. However, evidence from overseas medical practitioners is not accepted. The Government wish to change the regulations to enable evidence from appropriate health professionals who are licensed and registered overseas to be accepted for legal aid applications. This will enhance the ability of victims to take action against perpetrators.
Thirdly, the statutory instrument will amend terminology in LASPO and associated regulations to align with the Domestic Abuse Act 2021, which I will henceforth call the DA Act. Since the introduction of the DA Act, terminology across government has moved away from “domestic violence” and towards “domestic abuse”, to explicitly recognise that perpetrators use more than just physical violence to harm an individual.
In its definition of domestic abuse, the DA Act describes such behaviour as including
“physical or sexual abuse … violent or threatening behaviour … controlling or coercive behaviour … economic abuse … psychological, emotional or other abuse”.
The inclusion of the term “economic” abuse in this definition—rather than “financial” abuse, as is currently used in LASPO—reflects a shift in recent years to explicitly acknowledge that abuse goes beyond interfering with money and finances to include economic resources more broadly, such as things that money can buy, examples of which include housing, possessions and clothing.
Further, the DA Act expressly states that domestic abuse of an individual includes behaviour and conduct directed at another person. For example, an abuser may direct behaviour towards a child in the household in order to facilitate or perpetuate the abuse of their partner. The definition of domestic violence in LASPO recognises that abuse extends beyond physical violence, and therefore implicitly includes abuse directed at third parties. However, by updating the LASPO terminology to align with the wording used in the DA Act, we aim to reduce the risk of victims perceiving that the abuse they are experiencing is out of scope for legal aid funding.
Finally, this instrument complements previous statutory instruments that made provision for bringing legal aid into scope for victims, third parties and those subject to domestic abuse protection orders and domestic abuse protection notices. DAPOs and DAPNs, as they are known, are new orders that are now available in Greater Manchester, three London boroughs—namely, Bromley, Croydon and Sutton—and Cleveland. They are also available to the British Transport Police in those areas and will shortly be extended to north Wales. This instrument makes further changes to LASPO and the Criminal Legal Aid (General) Regulations 2013 to bring other aspects of the DA Act in relation to DAPOs and DAPNs in scope of civil or criminal legal aid. These changes help ensure fuller availability of legal aid for individuals in respect of these instruments. These changes are technical and address unintended gaps in provision.
To conclude, the draft instrument before us will make legal aid available to society’s most vulnerable people, furthering this Government’s ambition to support victims of domestic abuse. I beg to move.
Lord Jones (Lab)
My Lords, time is of the essence, so I will be brief. I thank the Minister for his compassionate introduction. He has been so good as to indicate, unasked and informatively, where the pilot areas are. He mentioned my homeland, north Wales. I wonder whether he can be specific as to whereabouts in that lovely land.
Lord Marks of Henley-on-Thames (LD)
My Lords, I thank the Minister for his comprehensive introduction to this order. It has been extremely helpful to hear the way in which he set it out.
Broadly, we support the changes made by this instrument. It is plainly right that the regulations affecting legal aid for the victims of domestic abuse should reflect the broader definition of “domestic abuse” in the Domestic Abuse Act, rather than the previous, narrow definition of “domestic violence”, which failed to recognise, for example, coercive and controlling behaviour. It is also right that the narrow definition of “financial” abuse is to be replaced with a broader definition of “economic” abuse in all the other areas that the Minister outlined. The regulations should be updated—as he has explained that they will be—to ensure that legal aid is available in relation to disputes concerning domestic abuse protection orders and domestic abuse protection notices.
That medical evidence is now to be admissible from overseas health professionals is plainly sensible; it is an anomaly that this was not already the case. There was, for example, nothing to cover the position of a victim of domestic abuse who was assaulted by a partner while temporarily abroad on holiday and who had obtained contemporaneous evidence of that assault while she or he—usually she—was still abroad. It is also sensible that abuse of third parties—often the child of an intended victim or victim—should be within the definition of domestic abuse for legal aid purposes.
As has been explained, these regulations also make a significant improvement in the position of those whose immigration status comes under threat as a result of domestic abuse at the hands of a former partner or spouse when the relationship that has broken down as a result of that abuse formed the basis of their obtaining leave to enter and remain in the United Kingdom and the breakdown threatens their immigration status. The provision of a clear route for such victims of domestic abuse to secure legal aid to pursue an application for leave to remain is right and we welcome it.
So all these reforms are very welcome, but this kind of piecemeal reform, welcome as it is, barely scratches the surface in repairing the damage done by the reductions in the scope of legal aid. The Labour Party has a long tradition of supporting legal aid, but legal aid, particularly civil legal aid, has been a Cinderella service in recent years, seriously restricted in scope by the LASPO Act —I entirely accept that the coalition Government, which my party supported, had a lot to do with that —and in a number of very important areas. The service has been starved of funds for the provision of comprehensive advice and the pursuit of cases in those areas that are still within scope.
I know there is no need to remind the Minister of the excellent review of legal aid carried out under the leadership of his colleague, the noble Lord, Lord Bach, in 2017, but its principles were well stated, thoroughly argued and should guide this Government on the future of legal aid across the field. Indeed, the impact assessment for the 2023 order sets out the principle underlying civil legal aid in wide-ranging terms that I unhesitatingly endorse. I read them by way of reminder and in an effort to hold the Government’s feet to the fire across the wider field of legal aid.
Under the heading
“What are the policy objectives of the action or intervention and the intended effects?”
the impact assessment states:
“The policy objective behind the proposals in this Impact Assessment … is to ensure that legal aid is available to the groups of people identified and that legal aid is fairly provided across all proceedings. The ability of individuals to resolve their legal issues is vital for a just society and it is crucial that people are able to access support when they need it. A core element of this support is access to legal advice and representation where it is necessary. The Government provides legal aid in England and Wales to ensure those who need it can access legal advice and representation”.
So far, that is entirely across the field in general. Coming to the subject of this statutory instrument, it says
“including victims of domestic abuse, and parents having their child taken away”.
This is an important general principle that I remind the Government of in relation to this order, which we support.
Lord Sandhurst (Con)
My Lords, I thank the Minister for introducing this important statutory instrument. We on these Benches support the intent behind these reforms. We welcome efforts to modernise legal aid and to ensure that vulnerable individuals are not excluded from justice due to arbitrary procedural barriers or outdated definitions in law. This order reflects and builds on developments introduced by the previous Conservative Administration, particularly through the Domestic Abuse Act 2021 and recent updates to the Home Office Immigration Rules, notably Appendix VDA.
The extension of the Appendix VDA route is particularly significant. For too long, victims of domestic abuse who have been abandoned overseas—often as a result of coercive and controlling behaviour—have found themselves in legal limbo, unable to return to the United Kingdom or access the support they need. This change will rightly bring such individuals within the scope of legal aid for applications for leave to enter or remain. Can the Minister explain how the Government intend to ensure that information about this change is made clearly available to those who may be eligible for support but who remain outside the United Kingdom? What steps will be taken to ensure that victims who are stranded abroad are not left unaware of their rights under this amended provision?
The order also introduces a practical and necessary change to evidential requirements for private family law legal aid applications. By allowing reports from appropriately qualified overseas professionals to be accepted as valid medical evidence, it recognises that victims may not always be in the United Kingdom when they seek help. This change will reduce avoidable delays and better support families in transnational situations, but I have two questions for the Minister in respect of evidence from overseas witnesses. What steps will be taken to ensure that the evidence from overseas is from a genuinely qualified and accredited professional who, first, matches the professional standards expected of an equivalent health professional within this jurisdiction and, secondly, understands that he or she is complying with the standards of objectivity required of an expert witness complying with the rules of court in this jurisdiction? It is important that this country’s generosity is not abused.
We welcome the modernisation of language in the legislation. Replacing “domestic violence” with “domestic abuse” and “financial abuse” with the broader concept of “economic abuse” reflects the statutory definition set out in the Domestic Abuse Act and the lived experience of many survivors. Abuse is not always physical. It can be psychological, emotional or economic and exercised through control over finances, housing or access to essentials. The updated terminology will support a more comprehensive understanding of abuse among legal professionals and front-line decision- makers.
While we support the direction of travel, we will watch closely how these changes are implemented in practice. Victims whose immigration status is tied to an abusive partner are often in extremely vulnerable positions. Navigating the legal system should not compound their trauma. It is essential that the Home Office and legal aid providers apply these new rules fairly, sensitively and consistently.
There is also the question of clarity and guidance. Following up my two earlier questions, I asked the Minister whether overseas health professionals will be provided with clear information on what constitutes acceptable medical evidence. Without this, there is a risk that legitimate claims may be delayed or refused due to uncertainty about evidential standards or that inadequate evidence might mislead the court. While updating legal language is important, it must be matched by practical understanding. Front-line professionals, from caseworkers to judges, must be equipped to apply these broader definitions in practice. Training and guidance will be crucial.
These reforms build on existing entitlements. They reinforce the role of legal aid as a vital route to protection, justice and stability for victims of abuse, so we support this statutory instrument and thank the Minister for bringing it forward, but we urge the Government to ensure that the implementation matches the intention and that those at greatest risk receive the support they need when they need it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I turn first to the questions of my noble friend Lord Jones. I misspoke in my initial address to the Committee: the pilot areas are already under way in north Wales; they commenced on 28 April. The areas that are covered by these pilot areas in north Wales are the Isle of Anglesey, Gwynedd, Conwy, Denbighshire, Flintshire and Wrexham.
Lord Jones (Lab)
I thank the Minister for his geographic exactitude. When I think upon the names he mentioned, not much of north Wales is left out.
Lord Ponsonby of Shulbrede (Lab)
I am very glad my noble friend thinks that. It will be very interesting to see how these pilots develop.
I thank the noble Lord, Lord Marks, for his support and agree with the points he made when he explained his support for this statutory instrument. He said that legal aid is a Cinderella service; I agree with that. He acknowledged that it was the coalition Government that introduced the LASPO Act, but neither the noble Lord, Lord Marks, nor the noble Lord, Lord Sandhurst, were anywhere near the scene of the crime of the LASPO Act. Nevertheless, I acknowledge the points he made when he was addressing that and the review of my noble friend Lord Bach. I know it very well and think it is fair to say that it is aspirational at this point because money is tight but, nevertheless, the aspirations behind it still stand.
The noble Lord, Lord Sandhurst, asked how victims are going to get the information when they are abroad and how overseas doctors will present the information in an appropriate format. I am not aware of any particular advice on that so, if there is something particular I need to say, I will write to the noble Lord on that point. I have experience of the appropriate formatting of medical letters; it is quite a complicated and important part of the whole procedure, so I thank the noble Lord for bringing that to the Committee’s attention. As I say, if appropriate, I will write to him on this. I thank the Committee for its support for this statutory instrument.
Motion agreed.