Domestic Abuse
Baroness Butler-Sloss Excerpts(5 years, 7 months ago)
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Baroness Butler-Sloss (CB)
My Lords, I chair a commission on forced marriage. Will the Minister keep in mind that victims of forced marriage are often victims of domestic abuse? Many are extremely young and sometimes need rather better accommodation than the refuges provided—when they are provided—for victims of domestic abuse. They are also victims of domestic abuse, but in forced marriage.
Lord Bourne of Aberystwyth
The noble and learned Baroness is absolutely right to make that cautionary point about forced marriage. These will often be members of BAME communities, so we hope that will be catered for additionally, but she is right about the importance of ensuring there is appropriate provision here. Again, this perhaps relates to the broad definition of domestic abuse that will be in the Bill, which will include coercive and controlling behaviour.
Women’s Refuges: Funding
Baroness Butler-Sloss Excerpts(6 years, 1 month ago)
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Lord Bourne of Aberystwyth
My Lords, first, we do, of course, work with Women’s Aid, which is a key partner. It welcomed—with reservations, to be fair—the recent announcement of the 63 projects that I have referred to. We also work with other organisations in the sector—Refuge, SafeLives and Imkaan, for example. I again refer to the ongoing review, which is important—but as things stand we fund quite a range of different ways of providing refuges: it is not one size fits all. This is ongoing work, and that important review is forthcoming.
Baroness Butler-Sloss (CB)
My Lords, I declare my interest as set out in the register. May I remind the Minister of the importance of looking after a particular group, the victims of forced marriage, many of whom are under 18 and need rather more specialist care than many refuges can give them?
Lord Bourne of Aberystwyth
My Lords, the noble and learned Baroness is right about the complex needs of victims of forced marriage. They are catered for in those 63 projects, as are other groups with complex needs. The noble and learned Baroness is absolutely right.
Homelessness Reduction Bill
Baroness Butler-Sloss ExcerptsFriday 24th February 2017
(7 years, 10 months ago)
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Baroness Butler-Sloss (CB)
My Lords, like all other noble Lords, I strongly support the Bill. It is wonderful that Bob Blackman MP should have got it through with all the amendments in the Commons. It is hugely to his credit and that of the Government that that happened. We are fortunate that the noble Lord, Lord Best, opened the debate today with an excellent speech. We need to congratulate the Government, as others have done, on supporting the Bill—and not only supporting it but supporting it with finance, which is probably the first time that that has happened in many generations.
I will draw the attention of the House to two vulnerable groups of people about whom nothing has been said so far this morning. They urgently need priority housing. I declare my interests as vice-chairman of the Human Trafficking Foundation and a co-chair of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery. The first group consists of overseas trafficked victims who come to this country and go through the national referral mechanism. They have 45 days-plus of accommodation organised by the Salvation Army. They are looked after during that period. If they do not have conclusive grounds, they are rejected and after two days—after 48 hours—they have to leave the secure accommodation. If they are found by the national referral mechanism to be conclusively victims of trafficking in this county, they have to leave after two weeks and absolutely nothing is done for them unless one or other of the charities comes in to help them.
They are to be contrasted with asylum seekers, who have a number of rights. Many of them are pushed into the asylum process, which does not offer the sort of help that they need and which they begin to get by going through the national referral mechanism. They have no status and no rights, and many of them go on the streets. That is why I am referring to them today.
On the streets they may well be re-trafficked, with the women, and some men, going into prostitution in order to survive. This is a scandal as a national referral mechanism set up by government has identified them as victims of trafficking and identified that they have been slaves. Then they go missing. Speaking as a former lawyer, I say that this is a side-effect of some importance, because it is more difficult for the Crown Prosecution Service and the police to prosecute successfully to conviction because the victims do not have accommodation and the police cannot find them. That is the first group.
The second group consists of the British victims of slavery and trafficking. I do not know how many noble Lords know—I only learned recently—that soup kitchens are good places for traffickers to target those whom they wish to make slaves. In Westminster there is a soup kitchen which, as the Shadow City report of 2013 pointed out, has traffickers targeting it two or three times every night.
In 2008, the Swedish police sent seven dossiers on British people who were slaves in different parts of Sweden. This was particularly taken up in the Connors case. The Connors were a number of English Gypsies in Bedfordshire who I am glad to say are now serving long sentences of imprisonment. They picked up a number of English men at soup kitchens and took them to the north of Sweden. We are a source country, not just a country of destination or transit, for some reason particularly for workers on construction sites in Sweden. It was only because one of a group of Swedish slaves in northern Sweden managed to get to Stockholm and report this to the Swedish police that the police travelled 500 miles north, banged on the door of the caravan where a number of these men were locked in, got the door open and said to them, “Do you realise that you are slaves?”—because they did not. The reason I know about this incident is that I had been working with Frank Field MP and the then MP Sir John Randall on an inquiry for the then Home Secretary, Theresa May, and one of the victims from Sweden came and gave evidence to us. It is interesting to note that we are also a source country. We have homeless English people on the streets who are being targeted and find themselves becoming victims both in this country and abroad.
Hugely to his credit, the very active Independent Anti-Slavery Commissioner, Kevin Hyland, commissioned a report from an NGO, The Passage, which reported in January this year. It made a large number of important recommendations, one of which was about awareness. A great many social workers have absolutely no idea that the people they see on the streets can be the victims of trafficking and slavery. But the consensus of the report was how enormously important it is to provide support of all sorts, including housing of course, for the victims of trafficking who are found on our streets. So there is a clear need for priority housing and free advice for these two groups of very vulnerable people.
An example of what can go wrong is mothers with children who are moving from one form of temporary accommodation to another or are indeed homeless. I learned about one mother who had had to move house and so had two children in school in one London borough and one child in school in another borough. That is not a helpful situation for someone who is a trafficked victim from overseas.
The Bill should, could and, I hope, will do something about these two groups. I am acutely aware that the noble Lord, Lord Best, does not want any amendments, much though I would like to put down an amendment to deal specifically with the victims of trafficking and modern slavery. But perhaps I may refer to Clause 2(2), which states:
“The service must be designed to meet the needs of persons in the authority’s district including, in particular, the needs of … any other group that the authority identify as being at particular risk of homelessness in the authority’s district”.
I hope and expect that the two groups about which I have spoken will be seen as coming under that provision.
It is interesting to note that in November last year, before the Bill came to this House, Bristol City Council recognised that there was a local authority responsibility to provide welfare support for the victims of trafficking and modern slavery in order to avoid breaching Articles 3 and 4 of the European Convention on Human Rights as well as, I am glad to say, the Council of Europe Convention on Action against Trafficking in Human Beings and the EU directive on human trafficking. I hope that the relevant national and local authorities will listen and that the Bill will help those two groups.
Northern Ireland: National Crime Agency
Baroness Butler-Sloss Excerpts(10 years, 1 month ago)
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Baroness Randerson
I understand the frustration that the noble Lord expresses, but I can assure him that my right honourable friend the Secretary of State has been constantly involved in this issue and is regularly in discussions with the political parties. However, the noble Lord is correct in drawing attention to the fact that the same protection is not afforded to the people of Northern Ireland while the issue of the NCA is unresolved. I can assure him that we are extremely keen to reach agreement on this.
Baroness Butler-Sloss (CB)
My Lords, how long will the Government wait to decide to override what is not being done in Northern Ireland?
Baroness Randerson
I think the noble and learned Baroness expresses the same view that has been made clear around the Chamber not just today but in previous discussions that we have had on this issue. It is important that we are given this opportunity to discuss it because our frustration and concern need to be heard in Northern Ireland in order to ensure that all the political parties take this issue very seriously indeed.
Northern Ireland: National Crime Agency
Baroness Butler-Sloss Excerpts(10 years, 5 months ago)
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Baroness Randerson
My noble friend makes an important point, and I very much hope that politicians in Northern Ireland who have not found themselves able to reach agreement so far on the remit of the NCA and its answerability in Northern Ireland are listening at this time, or will read the record afterwards, in order to realise the seriousness and importance of reaching agreement.
Baroness Butler-Sloss (CB)
My Lords, since this is a matter of enormous concern throughout the United Kingdom, and not just a Northern Ireland issue, what can the UK Government do about it?
Baroness Randerson
My Lords, I hope that I have made it clear that the Government are very closely involved in this, and that we remain optimistic that agreement will be reached. I understand the frustration that noble Lords are exhibiting at the length of time it is taking to reach agreement, but the talks and discussions are ongoing, and the work within the office of the Justice Minister is very much an active piece of work; we are reassured of that fact.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Butler-Sloss Excerpts(12 years, 9 months ago)
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Baroness Butler-Sloss
Baroness Butler-Sloss
My Lords, there are three amendments here that relate to internal child abduction. Noble Lords may well know that international child abduction is governed by the Hague convention, to which the United Kingdom is a signatory. There is a well established procedure for dealing with a child wrongfully removed from any part of the UK to a foreign country. There are emergency hearings before a High Court judge and the attempt at recovery process then takes over. That process is well known and well established.
There is no such procedure for internal child abduction within the UK, although we operate three separate legal processes in the three jurisdictions of England and Wales, Scotland and Northern Ireland. A child may be taken wrongfully from Exeter to Belfast, Glasgow or even Carlisle, which may be just as upsetting or traumatic as abduction to France or Sweden. Removal from home, school, friends and security, and fleeing with a parent who is often acting irresponsibly and removing the child wrongfully, is certainly not in the best interests of the child. It is also traumatic for the left-behind parent, who has no idea what happened to the child or even whether he or she will ever see that child again. The decision for a child’s future should be made sensibly and responsibly.
Where there are two parents, each with parental responsibility, one parent cannot up and go with the child to live elsewhere without the consent of the other parent—I do not think that all parents know that—and even more so when the parents are separated and one parent has a residence or custody order. Under the Bill’s proposals, though, there is no provision for legal aid for the left-behind parent to find out where the child has gone, whether the child is safe and how to put into effect a process similar to that employed if the child has gone abroad. Quite simply, I am asking that there should be exactly the same process internally within the United Kingdom as there is externally for abduction to a foreign country.
I am extremely grateful to the Lord Chancellor, who asked to see me on this issue, and to the Minister for seeing the noble Baroness, Lady Shackleton, and the chairman of the Family Law Bar Association. As I understand it, the Government recognise the problem and that it requires a solution. I suspect that the only issue between us is how far they will go, because there are two aspects to the issue of internal child abduction: one is the recovery of the child but the other is the prevention of the removal of the child. Consequently, one needs both the prohibited steps order or a specific issue order and the location order, sometimes called “seek and find”, or a recovery order involving the tipstaff and the police—the police will not act unless there is an order—asking various agencies for addresses and going through the well known process that happens internationally but not nationally.
There is no reason why the international system should not apply internally, and I understand that the Government accept that. It is important that the whole process should be applied. I make it clear that it is intended only to stop the child being removed, to get the child back or at least to know that they are safe and properly cared for. It is not intended to be a backdoor entry into private-law family cases. Everyone understands that in a situation in which it is known where the child is—perhaps a social worker in the area finds the child with grandparents and says that the child is perfectly safe—the legal aid will drop at that moment. It would be the responsibility of the left-behind parent or the parent who has wrongfully removed the child to go to court. They would then be on their own, like any other couple in dispute over their children.
The process for which I seek legal aid is purely and simply connected to potential or actual abduction. I repeat without apology that I am asking for the process for abduction throughout the United Kingdom to be exactly as the same as the international process under the Hague convention. I beg to move.
Lord Beecham
My Lords, this amendment gives me a sense of déjà vu. More than 30 years ago, I acted for a father whose three children were in effect abducted by his wife and removed to Scandinavia in flagrant breach of undertakings and a court order. The case was tried by a Mr Justice Faulks. I do not know whether he was any relation of the noble Lord, Lord Faulks, who is not now in his place. It was a tragic case; the father lost virtually all contact with his two daughters, although his son eventually returned of his own volition. It exemplifies the kind of family tragedy that can occur when one party flouts all legal responsibilities.
I congratulate the noble and learned Baroness on bringing these amendments forward. Since there is a sympathetic reaction from the Government, I hope that the Minister will undertake to bring this back at Third Reading to resolve the matter satisfactorily. It seems axiomatic that the same procedure should, as the noble and learned Baroness suggests, apply whether the abduction is outside the jurisdiction of the UK courts or within one of the three jurisdictions that obtain. It looks as though the Government are minded to accede to that. I very much hope that an indication can be given that this will be resolved at Third Reading.
Lord Wallace of Tankerness
My Lords, as she has indicated, the amendments moved and spoken to by the noble and learned Baroness, Lady Butler-Sloss, concern legal aid for measures to prevent the unlawful removal of a child within the United Kingdom and for taking steps to remedy such a removal. They would add to similar existing legal provisions for legal aid to prevent and remedy the unlawful removal of children from the United Kingdom. It is important to stress that unauthorised removal from the United Kingdom is a crime, whereas, as has been acknowledged in this debate, one parent taking a child to another part of the United Kingdom without consent is not. Trying to navigate a foreign jurisdiction in a foreign language without a lawyer would also be considerably more difficult than trying to do something similar in the United Kingdom.
That said, the noble and learned Baroness has, as ever, made a powerful and persuasive case. We have indicated that in future people should, subject to various important exceptions, be able to deal with their family matters themselves, without the benefit of taxpayer-funded legal aid. However, I certainly recognise that if you cannot even find your child because they are in the hands of an ex-husband, ex-wife or estranged partner, it may seem impossible even to begin that process. The emotional stress on people in such situations can be immense. Therefore, we are sympathetic to the concerns of the noble and learned Baroness, particularly the proposals to make legal aid available for Section 33 and Section 34 orders under the Family Law Act 1986 —that is, the seek and find orders and the recovery orders.
Seek and find orders allow a court to compel someone who might reasonably know where a child is to tell the court. The court will then judge whether this information should be passed on to the left-behind parent. Obviously, if there are safety issues it might not be advisable to do so. Refusal to impart that information is treated as contempt. Thankfully, Section 34 orders are somewhat rarer, but they give the police powers to recover a child forcibly in emergency situations. As the noble and learned Baroness identified, we are not yet convinced that the associated prohibited steps and specific issue orders require funding. The same applies to registering an order made in one part of the United Kingdom in another part.
I fully accept that the noble and learned Baroness is not trying to find a backdoor entry into private law matters. However, our concern, and the reason we are not yet convinced about this, is that these orders get us much more into funding a family case as a whole, including by preventing relocation. The issue here is that many cases involving children are in fact arguments about where a parent with residence might reasonably live and the effect that will have on contact for the other parent. Therefore, when we talk about prevention in this context, that is the kind of situation we are talking about. I know that the noble and learned Baroness, from her vast experience, would see it as that. However, sometimes when members of the public talk about prevention orders, they have an image of stopping a child being bundled into the back of a car. That is sometimes the description conjured up by “domestic child abduction”.
If the noble and learned Baroness is willing to withdraw this amendment, the Government will table at Third Reading a similar amendment that covers Section 33 and Section 34 orders, for international abduction as well as domestic. I am happy for officials in the Ministry of Justice to continue discussions with the noble and learned Baroness, which I know have been ongoing, as she acknowledged, on the exact drafting of that amendment.
Baroness Butler-Sloss
I am very grateful to the Minister for what he has said, although it does not go quite as far as those who undertake these cases nowadays feel is necessary. I have had extensive experience of these cases as only High Court judges tried them in the past. I think that only High Court judges or deputy High Court judges try the international ones nowadays. That is an indication of the importance that is attached to these cases.
Given where the noble and learned Lord comes from, I have to say that in the past there have been real problems in getting a child back from Scotland who has been removed by a parent without the consent of the other parent. The process is not simple. I have not had a similar experience with Northern Ireland, but I am sure that these cases must arise there occasionally. As noble Lords know, those are different jurisdictions; that is the problem. I am very happy with where we have got so far, but I would like to get a little further. I am grateful for the opportunity to continue to discuss this matter not only with the noble and learned Lord but with his officials. In the mean time, I beg leave to withdraw the amendment.
Baroness Butler-Sloss
““abuse” means any incident or repeated incidents of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional, and including acts of neglect, maltreatment, exploitation or acts of omission) between adults who are or have been intimate partners or family members, regardless of gender or sexuality;”
Baroness Butler-Sloss
“( ) For the purposes of this paragraph, evidence that abuse has occurred may consist of one or more of the following (without limitation)—
(a) a relevant court conviction or police caution;(b) a relevant court order (including without notice, ex parte, interim or final orders), including a non-molestation undertaking or order, occupation order, forced marriage protection order or other protective injunction; (c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic violence;(d) evidence that a victim has been referred to a multi-agency risk assessment conference, as a high risk victim of domestic violence, and a plan has been put in place to protect that victim from violence by the other party;(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;(f) a medical report from a doctor at a UK hospital confirming that the applicant has injuries or a condition consistent with being a victim of domestic violence;(g) a letter from a General Medical Council registered general practitioner confirming that he or she has examined the applicant and is satisfied that the applicant had injuries or a condition consistent with those of a victim of domestic violence; (h) an undertaking given to a court by the alleged perpetrator of the abuse that he or she will not approach the applicant who is the victim of the abuse;(i) a letter from a social services department confirming its involvement in providing services to the applicant in respect of allegations of domestic violence;(j) a letter of support or a report from a domestic violence support organisation; or(k) other well-founded documentary evidence of abuse, such as from a counsellor, midwife, school or witness.”
Baroness Butler-Sloss
“Exceptional family proceedings(1) Civil legal services provided in relation to a family dispute with respect to the upbringing of a child, including orders mentioned in section 8(1) of the Children Act 1989 (residence, contact and other orders) and special guardianship orders under that Act, where an assessor for mediation (competent to carry out publicly funded assessment) certifies that the case is unsuitable for mediation having regard to any significant harm which the child has suffered or is at risk of suffering; and in this paragraph “family dispute” has the same meaning as in paragraph 12.
Exclusions
(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.”
Baroness Butler-Sloss
My Lords, I have already spoken to this amendment, which, as I said, was rather oddly included in the first group of amendments. I am not entirely sure what the Minister was offering. I would therefore like to read Hansard rather carefully to find out what he was offering and, if necessary, bring the amendment back at Third Reading if I am not happy with his comments, as I fear I may not be. For the moment, however, I shall not press the amendment.
Lord Beecham
My Lords, I congratulated the noble Lord on moving this important amendment in Committee, where he raised a particularly moving case. I congratulate him on raising the matter again on Report. I hope that the Minister will produce a satisfactory answer.
In Committee I raised a different point—perhaps not as clearly as I might have done—based on advice that MIND provides for patients. The point was not in relation to treatment for a mental health disorder, which of course would be covered by the Mental Health Acts and which the noble Lord, Lord McNally, pointed out would remain within scope. However, there may be a question regarding someone who suffers from a mental health disorder but whose treatment is for a physical problem, not for that disorder. The MIND briefing to patients states:
“Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder”.
A situation may be arising there in which the provision of legal advice would not be within scope because it is not for treating the mental health disorder.
I appreciate that an off-the-cuff answer might not be immediately available on that point, and I may have got it entirely wrong. However, such a situation strikes me as a possibility emerging from this briefing. So while I would certainly encourage the Minister to endorse the amendment of his noble friend, I would also ask him to undertake to look at the point that I have raised and, if necessary, to bring something back at Third Reading.
Baroness Butler-Sloss
My Lords, I supported the noble Lord, Lord Thomas of Gresford, in Committee, and I do so again now. As I said then, I had experience, at one time, of trying the majority of permanent vegetative state cases. I fear that there will be a small number of cases that are extraordinarily difficult to decide, where the families are placed in an agonising position. They really ought to have the opportunity to be heard in the court and to deal with this matter. Such cases are rare but very important. I very much support the proposal that something should be done about this.
Lord McNally
My Lords, the amendment seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. As my noble friend Lord Thomas explained, he also tabled this amendment in Committee, where I think it was established that the matters envisaged by the amendment would in fact already fall within the scope of paragraph 5 of Schedule 1.
However, my noble friend also took the opportunity to speak about the wider issues and asked that I consider the observations made by the judge in the case of W against M and others—in particular, whether an exception could be made to provide free legal aid for mental incapacity cases which concerned the withdrawal of nutrition and hydration from a family member. Although it would not be right to comment on the specifics of any particular case, I understand the concern that such a case can raise. However, we do not plan to abolish means-testing for cases involving the withdrawal of nutrition and hydration. The means test for legal aid is intended to focus our limited resources on those who need them most and takes into account the applicant’s income and any capital they may hold. Those who fall outside the financial eligibility limits are expected to rely on their resources to fund their case. However, if an applicant's circumstances change, they can apply for legal aid funding. I therefore urge my noble friend to withdraw his amendment.
On the specific point raised by the noble Lord, Lord Beecham, if he would like to send me the briefing that he has received, I will certainly check on it, write to him and put the letter in the Library of the House.
In the mean time, although I know that my noble friend will be disappointed by my reply, means-testing for legal aid is intended to focus our limited resources on those who need them most.
Baroness Butler-Sloss
“Victim of trafficking of people for exploitation(1) Civil legal services provided to a victim of trafficking of people for exploitation for—
(a) a claim for compensation in the Employment Tribunal, or(b) a claim for personal damages relating to being trafficked for exploitation.(2) In this paragraph “victim of trafficking of people for exploitation” means a person who has been identified as a victim of—
(a) an offence under section 59A of the Sexual Offences Act 2003 (trafficking people for sexual exploitation); or(b) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (trafficking people for labour and other exploitation).”
Baroness Butler-Sloss
My Lords, I declare an interest as co-chairman of the human trafficking parliamentary group and as a trustee of the Human Trafficking Foundation. This is a very specific and limited amendment, which seeks to help the victims of human trafficking who have escaped.
We have two groups in mind. The first is those who manage to get away from domestic slavery. Quite often somebody from the Indian sub-continent, further east or the Middle East comes to this country thinking that they are going to work in an ordinary way. However, they find that they become a slave, working seven days a week for no pay and sleeping on the floor, and they are unable to leave the house. When they eventually escape—a certain number of these cases come up from time to time but not very many—some of them manage with the help of a law centre to get to an employment tribunal, where there are pro bono lawyers who sometimes achieve quite large sums for them by way of compensation. If the legal aid sought here, which is for legal advice and assistance to reach the door of the court, is taken away from the law centre on behalf of the individual who is exploited for domestic or labour reasons, then that individual will not get that advice. They will be foreigners, they will have no idea how to get to the employment tribunal and, quite simply, their rights will have been totally overlooked.
The second group, where cases arise perhaps less often, concerns those who are exploited for sexual reasons—generally prostitution—and who are generally but not always women. They escape and sometimes manage to find the person who has trafficked them for sexual exploitation. They manage to get to the county court or occasionally the High Court—again, with the help of a law centre, which puts the case together—and at court they will find a pro bono lawyer.
Therefore, it is advice and assistance that the amendment specifically seeks. I recognise that there is a difficulty in how best to identify a victim of human trafficking or a,
“victim of trafficking of people for exploitation”,
the phrase used in the amendment. I had originally thought of referring to someone who had been identified by the national referral mechanism, but I was then warned that that mechanism was not an identifiable entity from the point of view of legislation. That is why I have used the wording as it appears in the amendment.
I am extremely grateful to the Minister and particularly to those behind him, who have indicated to me that the Government are sympathetic to this issue, but the question remains—and I understand it entirely—of how best to identify victims. However, I understand that what I am asking for is, at the moment at least, being sympathetically considered by the Government.
Lord Wallace of Tankerness
My Lords, Amendment 69 intends to bring into the scope of legal aid damages and compensation claims made by victims of human trafficking in either the civil courts or employment tribunals. Echoing the words of the noble Lord, Lord Bach, and my noble friend Lady Hamwee, I have noted the powerful arguments put forward that exceptional funding was not sufficient to provide for legal aid in this area. It goes without saying that we are all agreed that trafficking is a heinous, cynical crime. The ability to bring damages claims against former so-called employers is an important tool to secure reparations for victims and to punish their exploiters. As has been said tonight, and as was highlighted in our debates on similar amendments in Committee, it also helps to discourage those who seek to exploit people for financial gain. We had always anticipated that legal aid would have been available under the exceptional funding scheme for these damages claims, as was indicated by my noble friend Lady Hamwee, where such cases met the test for exceptional funding under Clause 9 of the Bill.
On reflection, we recognise the risk that in some cases this will not be sufficient. My colleagues and I are very grateful to the noble and learned Baroness for her constructive discussions with the Lord Chancellor, in which she pointed out that what is typically required in these cases is advice and assistance in making the claim. Therefore, we agree in substance with the amendment and accept it in principle. However, as I think is anticipated by the noble and learned Baroness, for drafting reasons—not least around definitions—we cannot accept it verbatim. If the noble and learned Baroness withdraws the amendment, I can assure her that we will come back at Third Reading with a finalised amendment.
My noble friend Lady Hamwee asked whether victims of trafficking would get legal advice for other matters as well as for damages. For non-damages cases, they would have to apply for exceptional funding if legal aid was not available. However, the amendment that we discussed earlier this evening would cover legal help for trafficked victims in bringing damages claims in the employment tribunal, and both legal help and advocacy for damages claims in other civil courts where they relate to the experience of being trafficked.
It is important that we have addressed these matters. I thank the noble and learned Baroness for bringing them back to the House. I hope that, with my assurance, she will withdraw her amendment.
Baroness Butler-Sloss
I am very grateful to the noble and learned Lord for his very constructive and heart-warming words. It is only right that I should congratulate the Government on their strategy. The only point about strategy is its implementation, so I warn the noble and learned Lord that I shall continue to battle to implement the strategy, which is excellent in outline. However, this is a very good step forward. I look forward to further discussions with the noble and learned Lord and his team. In the mean time, I am very happy to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Butler-Sloss Excerpts(12 years, 11 months ago)
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Baroness Butler-Sloss
“( ) Civil legal services provided to an adult (“B”) in relation to a court hearing in a matter arising out of a family relationship between B and another individual (“A”) where B has abused A or there is the risk of such abuse and where the court certifies that due to the probability of cross-examination of A there is a need for both parties to be represented at that hearing.”
Baroness Butler-Sloss
My Lords, this is the first of a group of amendments relating to domestic violence. Some of them overlap and are repetitive but they all have the same desire at their core—that the Government should listen a little more carefully to the very real concerns of many people about the incidence of domestic violence and the fact that the Bill, if not improved, may do a lot of damage to extremely vulnerable people.
I have also put my name to Amendments 45, 46 and 48. Amendment 42 relates to a situation where a woman alleges domestic violence against a man and he is not represented. He will therefore be asking her questions about the abuse which she says he has perpetrated. If that abuse has occurred, it will be an extremely painful experience for her to undergo that questioning without the intervention of a lawyer. I well remember the Minister pointing out on Monday that judges are there to keep matters in order. I can only say to him that that is not entirely easy because there is a right of cross-examination and any defendant has a right to put his or—sometimes a woman is an abuser—her case to the person making the allegations. Therefore, as I know from experience, the judge’s ability to stop the sort of questions that will be asked will be quite limited. Some of those questions will have to be asked, but being questioned by the man who has committed the sometimes very serious domestic violence is in itself a form of abuse against the woman; as I said, occasionally a man is the victim.
I hope that the noble and learned Baroness, Lady Scotland, will be speaking to Amendments 45, 46 and 48, so I shall make only one or two brief points about them. I notice that Amendment 44 is very similar to Amendment 45, although our amendment is slightly broader. The definition of domestic violence currently proposed is, in my view and I think the view of many others, inadequate and requires to be much broader, particularly in relation to threatening behaviour and psychological behaviour. Some men drive their wives or their partners almost to suicide by never putting a finger on them; in many ways, psychological and threatening behaviour is even more dangerous and even more debilitating than the man who returns home drunk on Saturday night and knocks his wife around but who does not ill treat her from Sunday to Saturday. Psychological abuse is usually daily and nightly and, therefore, it requires a rather broader interpretation.
Lord McNally
I will take this back but, again, I am speaking as a layman to professionals. As far as I understand it, there are increasingly ways in the courts of preventing that kind of face-to-face, aggressive cross-examination. I think that there was a case recently which caused a good deal of public comment and distress. I will take the matter away and take further advice but, as I say, both my impression as a layman and the advice that I have are that there are safeguards to prevent that kind of brutal, face-to-face, intimidating cross-examination. I hear what my noble friend says and I will take further advice on the matter.
I turn to Amendments 43, 44, 45, 46 and 48 and start by reiterating why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid as it stands is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary relief applications to divide family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend some extra £10 million a year on mediation, taking the total to £25 million a year.
We accept, however, that mediation might not be suitable in every case—particularly, as we made clear, in cases involving domestic violence. It is important to remember that the inclusion of this provision is to ensure that legal aid remains available for private family law cases where there is evidence of domestic violence, creating a disadvantage for one party, and cases where a child is at risk of abuse.
Amendments 44 and 45 would put in paragraph 10 of Schedule 1 to the Bill, in place of the existing definition of abuse, parts of the definition of domestic violence first used by the Association of Chief Police Officers but subsequently more widely adopted for operational purposes—although not, it should be noted, by the courts. The existing definition of abuse used in the Bill is a broad and comprehensive one, having been drafted deliberately and explicitly so as not to be limited to physical violence. It should be noted that it is used elsewhere in Schedule 1: in paragraph 3, which provides for legal aid to be available in relation to the abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse.
Baroness Butler-Sloss
I hope that the Minister will forgive me for interrupting him. Can he explain what is wrong with the ACPO definition and why it is preferred to have a different definition, twice to be found in the Bill but not to be found elsewhere? As far as I know, there has been no broad definition by the judges of domestic abuse, which has been referred to in all its various forms. I am absolutely certain that the courts accept the ACPO definition.
Lord McNally
I will write on this matter, but I think that here the noble and learned Baroness is wrong. As far as I understand it, the Supreme Court did not accept the ACPO definition of domestic violence. If the noble and learned Baroness will bear with me, I will come to that point in the brief—there is a part that deals with this.
Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others, lest confusion should result. The definition should also be seen in the light of the Bill’s structure and the purpose of the paragraph where it appears.
I want to know—“like most normal people”, I was going to say—why on earth, if there is a perfectly good ACPO definition, we do not use it. The Supreme Court held that domestic violence could extend to psychological abuse but did not adopt the ACPO definition. However, the majority of the court indicated approval of the approach of what is now Practice Direction 12J, supporting the Family Procedure Rules 2010. For its purposes, it defines domestic violence as,
“physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm”.
Lord McNally
I will very happily think about it and I naturally assume that the noble and learned Baroness is trying to help me. I am very grateful for that. This reply and this whole debate will need to be looked at to see whether we are achieving our real objectives of getting something that is fit for purpose—although I hate using that phrase—in terms of addressing a matter of genuine concern right across the House. There are no differences on this and I freely admit that I do not have the noble and learned Baroness’s detailed experience of these matters. I hope that she will accept that I share her commitment that we get this right.
It may be helpful to give some idea of the prevalence of those forms of evidence. About 24,100 domestic violence orders were made in 2010; about 74,000 domestic violence crimes were prosecuted in 2009-10; and there were 53,000 domestic violence convictions. About 43,000 victims of domestic violence were referred to multi-risk assessment conferences in the 12 months up to June 2010. Clearly, those numbers will overlap to a certain extent but, to compare, the Legal Services Commission funded legal representation in about 69,000 private family law cases in 2009-10, not including legal aid for protective injunctions. The forms of evidence we intend to accept will meet a very high standard of objectivity. We are concerned that many of the additional forms of evidence suggested in the amendments would rely on the word of those involved and provide an incentive to make allegations where none presently exists. However, I also heard what both the noble Lord, Lord Macdonald, and the noble and learned Baroness said.
Let me be clear. We are not questioning the integrity of genuine victims. However, during the legal aid consultation, concerns were expressed about providing an incentive for unfounded allegations. Accepting self-reporting without objective evidence would prevent us from focusing assistance on those victims of domestic violence who would be unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments referred to evidence from professionals in a variety of roles. We have widened our criteria, so that legal aid will be available where the victim has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence, and a plan has been put in place to protect them from violence by the other party. Those referrals can be made by a range of professionals. Further, a finding of fact in the court that domestic violence has occurred will trigger legal aid and the court will be able to assess any relevant evidence.
Amendment 48 would prevent a time limit applying to any evidence. We have already said that a 12-month period, where relevant, will apply, but we consider that 12 months will be an appropriate period to protect victims and enable them to deal with their private law issue. The point made by the noble and learned Baroness about an intervening prison sentence would not interfere with that rule. If the criteria were to rise again—for instance, if a second protective injunction is made—the period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to a breach of an individual’s right under the European Convention on Human Rights, in particular Article 6.
This has been one of the most important debates on the Bill because, as all those who have contributed said, it is essential that we get this right. There have been some very well informed and committed speeches. I have put on record the Government's approach, which is to get it right on domestic violence and the legal aid that we provide to those who are subject to it. With that, I hope that the noble and learned Baroness and others will not press the amendments today but allow me to go away, study the debate and the proposals made, match the commitment that we all share to what is in the Bill and return to the matter on Report.
Baroness Butler-Sloss
My Lords, I thank all those who, with a great deal of knowledge, have contributed to this important and anxious debate. It is obvious that the Government are entirely committed to doing their best to combat domestic violence, so the only issue between the various speakers in the debate has been the best way to achieve it in the legislation before the Committee.
I am very grateful to the Minister for his obvious concern, and I hope that he will go away and think about what those of us with some knowledge of these matters have said. If I may respectfully say so, it is equally important that the Lord Chancellor reads and takes account of what has been said.
Lord McNally
That can be taken as implied. I assure the noble and learned Baroness that when I tell him who has spoken and what they have said, he will listen. Taking up the point made by the noble Lord, Lord Clinton-Davis, it is not that we do not talk to each other; we are following the process of the Bill. I am grateful that the Committee is taking this approach, as we can look at the arguments that have been made and think very hard about the issue before Report. I assure the noble and learned Baroness that when I say that I shall be taking the matter away, I mean that I shall be taking it back to the Lord Chancellor.
Baroness Butler-Sloss
I thank the Minister. I found it absolutely irresistible to say that. Each of the points that we have been dealing with is important but two of them are particularly so. The first is the definition. I think that we might all do more work in looking at the definition—in particular, by accepting the Minister’s invitation to see whether the wording in Schedule 1, as he has explained it, really does meet the ACPO requirements. If it does not, we should ask why not, and to what degree it does not meet them.
The second point is the very important list in Amendment 46. With respect, I would adopt the suggestion of the noble and learned Baroness, Lady Scotland, that these formulae for triggering legal aid in domestic violence should be in the schedule. As I understand it, the Minister’s alternative suggestion is that they should be in the regulations. It would be enormously helpful, before Report, to have a rough draft of what the regulations are likely to provide so that we may know that what we are all worried about will be found in them. The Merits of Statutory Instruments Committee, of which I am a member, is all too well aware that a statutory instrument either comes in or goes out. There is absolutely no possibility of amending it unless the government department is prepared to take it back and rewrite it. It would be much better if we knew in advance what was going to be in the regulations, rather than having to attack a statutory instrument at a later stage, which is always an unhappy situation. However, as I said, I am personally very comforted by what the Minister has said.
I want to make one point about Amendment 42. I suggest that the advice that the Minister receives is theoretical rather than practical and on the ground. I wonder whether any of those who have given him advice about what goes in court appreciates that a defendant always has the right to put his case. That is the point that I made in my preliminary observations and it was a point also made by the noble Lord, Lord Carlile. The judge cannot stop that, but it can be a real extension of the domestic violence. I pursued that matter because one has to bear it in mind. Judges can ameliorate the position but they cannot prevent the defendant having the right to put his case. If he does not have that right before the judge, he can appeal to the Court of Appeal and ultimately to Strasbourg under the articles of the convention. Therefore, human rights apply to the defendant as well as to the victim. That is the problem and it is why legal support for the defendant would be a protection for the victim. Having said that, I beg leave to withdraw the amendment.
Baroness Butler-Sloss
“( ) Civil legal services provided to an individual who has, or it is alleged will, put the child at risk of abuse in relation to a court hearing in a matter in relation to the orders and procedures set out in sub-paragraph (1), and where the court certifies that due to the probability of cross-examination there is a need for them to be represented in that hearing.”
Baroness Butler-Sloss
This is another aspect of a situation in which the possible perpetrator, unrepresented, cross-examines a witness. The Minister said in respect of an adult victim of domestic violence that they would not necessarily be the most vulnerable of the people who come before the courts. The amendment relates to the most vulnerable because it relates to the pretty unusual, but not absolutely exceptional, situation in which a child has made allegations against the father not in a public law case but in a private law case. Norgrove, in the family justice review, underlines the fact that a proportion of abuse cases come through the private law sector. In that sort of case, the father has the right—it could be the mother, although generally it is the father—to cross-examine the child if the child is making the allegations and comes to court. If the father cross-examines the child about the abuse that the child has said he or she has suffered at the hands of the father, that is a further form of abuse of a really appalling kind. It would be rare and there would be very little expense. It would happen only where the judge said that the child has to give evidence—in most cases children do not give evidence—and only where the father wanted to ask the child questions.
Again, the father or the mother who is accused of abuse has the right to put the case to the child that it is not true. This can be done by a lawyer. It is upsetting for a child, but it can be done with a considerable degree of discretion. It is done very regularly in the criminal courts by barristers and solicitors, many of whom have had training in how to ask questions. What on earth would the Minister think of an eight or nine year-old who is able to explain very clearly what has happened to him or her being cross-examined by the father about the intimate allegations of how the father has behaved? I beg to move.
Baroness Scotland of Asthal
I support the noble and learned Baroness in this matter. She is absolutely right that these cases are rare, but unfortunately they tend to be the most painful. The opportunity for the judge who is managing such a case to be able, if he or she thinks it appropriate, to invite legal representation for that part of the case, and there being legal aid available for the judge to so invite, may be extremely important. It is very unlikely that this avenue would be used very often, but I respectfully suggest that it would be important, in support of what the noble and learned Baroness, Lady Butler-Sloss, says, for that opportunity to be available for the better protection of the child, whose best interests would in those circumstances of course be paramount.
Lord McNally
My Lords, I do not want to get into a situation where I take things away and give the impression that the case has been made. However, again, I must listen to a former president of the Family Division and a former Attorney-General when they say that there is a problem. The noble and learned Baroness, Lady Butler-Sloss, said that my advisers cannot have much experience of what happens in court. I can only say that our position is based on the assumption that judges are able to manage their cases in such a way as to prevent the kind of confrontation that we are concerned with here.
I will go away and take further advice on this. It has been examined in the other place. I do not want to leave a situation where very rare cases are not covered. On the other hand, we do not want automatically to extend funding to alleged perpetrators because that is not our line of travel as we try to focus aid on the most vulnerable and needy. It would be a mistake to assume that the only means of protecting a prospective witness, however vulnerable or young, is to fund representation for the prospective questioner. However, the two noble and learned Baronesses speak from considerable experience. I will test that experience with my advisers. If the noble and learned Baroness will withdraw her amendment, I will either reassure her before Report or we will come back to this then.
Baroness Butler-Sloss
I am very grateful for the support and experience of the noble and learned Baroness, Lady Scotland. As a distinguished former family practitioner she knows exactly what I have been talking about. There are only two former family judges in the Chamber at the moment: the noble Lord, Lord Elystan-Morgan, and me. He has just indicated that he agrees with me, in particular that a judge could not protect a child where the father or mother had the right of cross-examination in order to put his or her case. That is the problem. It is rare. Therefore, dealing with it would be very inexpensive. It might happen once or twice a year at most, and the judge would be required to certify the case. Judges will be well aware that legal aid is not to be easily given. They will be well aware that to certify a case would be very unusual. However, the situation exists and children require protection. I am grateful to the Minister for saying that he will at least take away the matter and think about it. No doubt he, and all of us, should have great respect for his advisers, but they do not understand the rights of defendants quite as well as those of victims. For the moment, I beg leave to withdraw the amendment.
Lord Thomas of Gresford
My Lords, the amendment was suggested by the Bar Council to put a particular issue into scope. It refers to:
“Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment”.
It arises out of a case called Re M, which was heard very recently by Mr Justice Baker. It was a case where someone was in a vegetative state, or the equivalent, and the family made application for the withholding of artificial nutrition and hydration from the person concerned. It was one of those terrible cases that one hears about from time to time. The judge made this particular series of observations, which I draw to your Lordships’ attention, in the course of his judgment. He quite deliberately set out observations for future cases. In paragraph 260, he said,
“given the fundamental issues involved in cases involving the withdrawal of ANH, it is alarming to the court that public funding has not been available to members of the family to assist them in prosecuting their application. In the event, the Applicant’s team has acted pro bono throughout the hearing and during much of the very extensive preparation. I stress that this has not caused any disadvantage to the Applicant … the family could not have had better representation. But it is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration. In this case, the “playing field” was level because of the exceptional generosity of the Applicant’s lawyers. In other cases, members of a family who wished to ask the court to authorise the withdrawal of ANH but did not qualify for means tested public funding may have to appear in person, given the very high costs of litigation. Such a situation would seem to infringe the family’s rights under Article 6 of ECHR. There are many demands on the restricted legal aid budget, but consideration should be given to extending the right to non-means tested public funding to family members seeking to bring this type of application. At present such non-means tested funding is available to parents whose children are the subject of care proceedings under the Children Act 1989. That provision is justified by the fundamental and life-changing consequences which flow from the making of a care order. The same argument applies to applications for the withdrawal of artificial nutrition and hydration”.
Your Lordships will appreciate that these cases unhappily happen from time to time, and when they happen, they exercise the family members, the practitioners and the judge to a very considerable degree. Each case has to be very carefully examined. In this case, the judge refused the application and said that the life of the individual concerned should be allowed to continue. The Bar Council’s proposed amendment would ensure that these cases come within the scope of legal aid, and I invite the Government to make an exception in these rare, but extremely expensive, cases.
Baroness Butler-Sloss
My Lords, I support this amendment. I declare an earlier interest in that I was the judge who tried nearly all the permanent vegetative state cases for the withdrawal of hydration and nutrition. I never had the case of M, although I very nearly did. In fact, the patient, who was on the verge of being in a permanent vegetative state, died. It is an extremely rare case where it is uncertain whether somebody is in a permanent vegetative state or has minimal consciousness. At the moment, the only decision has been against withdrawing nutrition and hydration. This situation will arise from time to time. It will be very rare. It is intensely distressing for the family and intensely difficult for the doctors and nurses who care for these people who may, or may not, have minimal consciousness. It raises an incredibly important problem as to the point at which the doctors are ordered by the court to withdraw the artificial nutrition and hydration. It is perhaps the most difficult of all decisions that might come before a court. In cases of permanent vegetative state it is nearly always the hospital that brings proceedings, but if a family brings proceedings, or wishes to be part of the proceedings brought by a hospital, it would be very difficult for the family to put forward a case of this extreme difficulty if it had no access to legal aid, particularly with the medical evidence that would be required.
Again, as I said on the previous amendment, this is not going to cost very much money because it is not going to happen very often, but it is a particularly important fallback position. These are terrible cases to try, as I know to my cost.
Lord Beecham
My Lords, I congratulate the noble Lord, Lord Thomas, on raising this matter and moving an amendment that could greatly assist a family, or others, in the context of the tragic and ethically challenging circumstances that he has so clearly outlined and which the noble and learned Baroness, Lady Butler-Sloss, has also addressed.
There is another set of circumstances in which the noble Lord’s amendment might well be applicable. While entirely endorsing his amendment on the grounds that he has advanced, I would like to refer to the suggestion of Mind in relation to the occasional need for people in detention under the Mental Health Act to also receive legal advice concerning treatment that may be prescribed for them. The system allows for legal aid to challenge the detention of someone who is being treated in a mental health facility but not in relation to treatment that might be proffered, or indeed insisted upon, by those in whose charge a patient might find himself.
Mind has provided helpful advice to people in detention who are unable to give consent for treatment. I will quote briefly from the document it has produced which is available to those in that position. The document outlines a whole series of things, including the definitions of various matters and persons, and then it asks:
“Can I be treated without giving consent to the treatment?”.
It goes on to say that,
“if … you have the mental capacity … you are generally entitled to refuse it and no undue pressure should be placed on you. However, the law does allow treatment to be given to an adult without consent where the adult lacks the mental capacity needed to give consent and where certain sections of the Mental Health Act apply. If you are experiencing mental distress and are offered treatment, you need to be aware of any legal powers that could be used if you refuse. However, the powers must not be used as threats to coerce you into consenting, and if you feel this is happening”—
this is the crucial point—
“seek independent legal advice and consider making a complaint”.
It suggests discussing concerns with a general practitioner and so on, and goes on to say:
“If you are under 18, the law is complex and it is best to seek specialist legal advice. It may be that you can consent on your own behalf, but this does not necessarily mean you have the same right to refuse. Others, such as your parents, guardian … may be able to consent on your behalf”.
Although the circumstances are very different and, I hope, of a less tragic character than those that have motivated the tabling of this amendment, there is a similarity in the situation of the clear need for legal advice to be available to people being detained under the Mental Health Act with regard to the treatment envisaged for them by those in whose care they find themselves. I would hope that the Minister will accede to the argument advanced hitherto by the noble Lord, Lord Thomas. In that event, the amendment would also cover the circumstances that I have outlined and which Mind has helpfully suggested.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Butler-Sloss Excerpts(12 years, 11 months ago)
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Baroness Butler-Sloss
“Victims of trafficking of human beingsCivil legal services provided to a victim of trafficking in human beings (“V”) in relation to—
(a) rights to enter or remain in the UK;(b) an employment claim relating to the experience of trafficking; (c) a claim for damages relating to the experience of trafficking; or(d) compensation relating to the experience of being trafficked under the criminal injuries compensation scheme.”
Baroness Butler-Sloss
My Lords, the Minister may be relieved to hear that these are the last two amendments in my name. They refer specifically to human trafficking, a very special part of the Bill. I declare an interest as the joint chairman of the All-Party Parliamentary Group on Human Trafficking. In moving Amendment 61A, I must also refer to Amendment 90A, which I hope noble Lords will consider to be self-evident from the wording.
The European Union directive, which the Government have signed up to, to everyone's delight, has in Article 12(2) and Article 15(2) the requirement for legal aid provision and legal assistance. If the Minister will forgive me, I want to quote the words of Article 12(2), which are very similar to the words in Article 15(2), which deals with adults. The directive states:
“Member States shall ensure that victims of trafficking in human beings have access without delay to legal counselling, and, in accordance with the role of victims in the relevant justice system, to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be free of charge where the victim does not have sufficient financial resources”.
There is very similar wording on children in Article 15(2).
The Government also signed the European convention prior to the European directive. Article 12(1)(d) requires a party—that is, the United Kingdom—to provide,
“counselling and information, in particular as regards their legal rights … in a language that”,
the victims of trafficking in persons can understand.
That is the background to the four matters raised in the first of the two amendments, which aims to provide civil legal services to victims of trafficking in relation to rights to enter or remain in the United Kingdom, employment claims, claims for damages in the employment tribunal, damages in the county court or possibly the High Court, and compensation under the criminal injuries compensation scheme.
Lord Howarth of Newport
I am in total sympathy with the amendments that the noble and learned Baroness has tabled, but I wanted to ask her whether she envisages that victims of trafficking who might make employment claims could also include people who are employed by gangmasters in conditions of well nigh slavery, fruit-picking or cockle-picking.
Baroness Butler-Sloss
I certainly saw the amendment as broad as that, and they may very well be able to do it through the employment tribunal. The great problem is that the employment tribunal will no longer have legal aid.
Lord Judd
I warmly commend the amendment, which I think will receive strong support from all parts of the House. The Bill in general is open to the awful charge of shifting the burden of our economic difficulties on to those who already in their lives face disproportionate difficulties and hardship. This is a particularly nasty and mean provision within that general strategy. These people are victims. They are not people who have just transgressed the law; they are victims of cruel, harsh and cynical treatment. If this country stands for anything, it must surely stand for ensuring that such people get some kind of justice after the experiences to which they have been exposed.
Baroness Butler-Sloss
My Lords, may I first thank noble Lords for their substantial and much appreciated support for these two amendments? The Government are undoubtedly to be congratulated on their strategy. They are also to be congratulated on opting in to the directive. It is the directive to which the Minister has just referred and it is the leading matter that we have to consider. The convention matters but the directive is part of English law and requires,
“access without delay to legal counselling, and … legal representation”.
I have to say that I am disappointed by the Minister’s response. The Salvation Army, which got the contract for this work, is doing excellent work but it is expected to look after these women—they are generally women—for only up to 45 days. The fact that, out of the goodness of its heart, it keeps some of these people far beyond 45 days is not in the contract that the Government have with them. The Salvation Army is not in a position to put forward a case for exceptional funding, for instance. Until we see what sort of regulations and instructions are given to the director of legal aid about how he or she is to operate exceptional funding, I would be very unhappy that one can just say that any victim of trafficking who wanted to make a claim against traffickers, or against the CIB, has to go through the exceptional funding route. It may be extremely difficult to get into it and even more difficult to be recognised within it as someone who is in an exceptional position.
Who is going to do that for a non-English person? We ought to look after our own people but we also ought to look after the people brought here against their will, or brought here misleadingly with promises that turn out not to be true. They are, in effect, dumped here or they escape. We have to look after them; we have a legal and moral duty to do so. Unless the Minister is able to say in due course that exceptional funding will specifically include claims by victims of human trafficking, his response will be inadequate. I should like him to go away and discuss with his advisers—and perhaps, as I asked a little earlier, with the Lord Chancellor—whether this very special and very small group of people should be specifically identified. I do not mind whether they are identified under exceptional funding or elsewhere, but they must not be left out on a limb. For the moment, I beg leave to withdraw the amendment.
Parliamentary Voting System and Constituencies Bill
Baroness Butler-Sloss Excerpts(13 years, 10 months ago)
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Lord Lawson of Blaby
My Lords, on this occasion I am unable to support my noble and noble and learned friends and I find myself, after an intermission of something like 35 years, when we were in another place, in alliance with the noble Lord, Lord Rooker. I agree entirely with everything that he had to say, which means that I shall not need to detain this House long. I realise that the House has been debating this Bill for a very long time—far too long—so I shall do my best to be brief.
I do not agree with the noble and learned Lord who has just spoken, for a number of reasons. We are perfectly entitled to ask the House of Commons to think again and look at this further. After all, it had a threshold amendment at an earlier stage in its proceedings and the majority against the threshold shrank from well over 500 to 70, so things are moving in the right direction. It may be that with a little more momentum there the right result will be obtained.
There is another point which I have to tell the noble and learned Lord, Lord Lloyd. He seemed to say that this is not a matter for this House. We are talking, certainly on the AV issue, about what my right honourable friend the Deputy Prime Minister has said is a potential constitutional change of the first importance. If this House does not have a role as the watchdog of the constitution, it has no role at all. I cannot possibly accept the argument made by the noble and learned Lord, Lord Lloyd.
I was also disappointed if not, if I may say so, slightly shocked by the poverty of the argument presented by my noble and learned friend the Minister, which boiled down to two issues. First, if I understood him aright, it seemed to me that he was concerned that the consequence of the amendment moved by the noble Lord, Lord Rooker, might be, “If you don’t know, stay at home”. I think that was what he said. He seemed to think that was terrible but if you do not know, what should you do? You cannot go and vote, “don’t know”; there is not an option on the referendum ballot, as far as I am aware. We have not exactly been told that but if there is a “don’t know” option, it is a different matter. Perhaps my noble and learned friend can tell us but I do not think there is. So, is it: “If you don’t know, toss a coin”? I listened attentively to my noble and learned friend’s speech because I was hoping to find something in it but I could not.
Secondly, the only other argument that my noble and learned friend used was that the very idea of a threshold was improper and an insult to democracy. In pretty much every other country in the world, notably the United States, when there is a major constitutional change there are special provisions. You cannot just get anything through on a majority of one, however low the turnout and whatever the conditions. Special provisions are always put in for major constitutional changes to set a higher hurdle, as there should be when the constitution is being fundamentally changed. Is the Minister saying that the United States is somehow not a proper democracy—that its arrangements are somehow improper and insulting? I will not enumerate all the other countries; my noble friend Lord Lamont did so in an excellent intervention in Committee, citing all the examples.
I make two final points. First, the Government implicitly accept that there needs to be a high turnout. That is why they decided to hold the referendum on the same day as the local elections. We know that it was not to save a few million pounds; it is because they believe that it will ensure a higher turnout. They are right and that is proper. This amendment helps the Government. It is in the same spirit as what the Government are doing by trying to ensure that there is a high turnout.
Secondly and finally, I say to those of my noble friends who are uncertain as to whether the amendment goes against the coalition agreement: the constitutional status of the coalition agreement is somewhat obscure. Nevertheless, one should always play safe. I have studied the coalition agreement very carefully and spoken to some of my right honourable friends in the other place. It is clear that the amendment of the noble Lord, Lord Rooker, in no way contravenes the coalition agreement. Therefore, I hope that this House will have the backbone to tell the other place that this is something of major constitutional importance; and that this House, as the watchdog of the constitution, would like the other place to look at this again.
Baroness Butler-Sloss
My Lords, I want to ask the Minister a very basic question, to which not only I but possibly other Peers do not know the answer: are we allowed to vote in the AV referendum?
Parliamentary Voting System and Constituencies Bill
Baroness Butler-Sloss Excerpts(13 years, 11 months ago)
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Baroness Butler-Sloss
My Lords, perhaps I may be permitted to put forward, with some diffidence, a perception from a Cross-Bencher, because the Cross-Benchers have been referred to. I think it is known that the Cross-Benchers actually listen to the arguments and we vote according to what we believe are the better arguments. But when a debate on one amendment takes three and three-quarter hours and is not followed by asking the House to decide on it, that is the point at which the Cross-Benchers wonder—I personally wonder and I believe I am not alone—what is actually going on.
Lady Saltoun of Abernethy
My Lords, I wonder if I could ask a brief question: what is all the hurry about? Why do we have to have a referendum this May? Why can we not wait and have it in a year’s time, or at any time? This is something that is too important to rush, as we are doing.