Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Gould of Potternewton Excerpts

Tuesday 20th March 2012 Lords Chamber

[Lord Dholakia]

My Lords, may I first put on record my thanks to the Minister, my noble friend Lord McNally, for a number of changes that he introduced to the Rehabilitation of Offenders Act? I will do so because it has some relevance to the amendment that we are debating, which will assist many women to break the revolving-door syndrome of reoffending. There has been a near-100 per cent increase in the women's prison population in the past 20 years. The Government will find that the single initiative on the Rehabilitation of Offenders Act will help reduce the women's prison population.

I am attracted to at least one element of the proposal contained in the amendment of the noble Baroness, Lady Corston: namely, the importance of the Government publishing a strategy to improve the treatment of women in the criminal justice system. When we debated this in Committee, my noble friend Lord McNally said that the Government’s strategy had been set out by our honourable friend Crispin Blunt in a speech on 20 January. That was a good start, and I certainly welcomed that speech.

My noble friend the Minister then set out a series of measures that the Government were taking to improve the position of women in the criminal justice system. The measures included the provision of resources for diversion schemes for mentally disordered offenders; piloting drug recovery wings in women's prisons; giving women prisoners access to the work programme on release; developing intensive alternatives to custody for women; improving access to the private rented sector for women offenders; and developing support for female offenders who have suffered domestic abuse. No one in their right mind could object to these important and welcome developments.

The occasional speech needs to be crystallised. The published strategy document would start by setting out the Government’s overall objectives: for example, to reduce women’s offending—here I mention the Rehabilitation of Offenders Act; to reduce the unnecessary imprisonment of women; to ensure that every probation area and youth offending team has programmes geared to the special needs of women offenders; to place mentally ill women in appropriate treatment settings; and to increase opportunities for contact between women prisoners and their children.

Since we are all interested in outcomes, the strategy document would then set out the measures that the Government are taking to achieve each objective. Annual reviews would be published, assessing progress against each objective of the strategy. This would enable all concerned with the treatment of women to see that the Government had a thought-out, comprehensive strategy to improve the treatment of women in the criminal justice system. It would also enable the Government to be held to account for progress on each objective of the strategy. Very importantly, it would enable this to be done on the basis of accurate information about the measures that the Government were taking to improve the position.

Far from making life more difficult for the Government, this would help increase appreciation for the range of excellent work that is under way to tackle the injustices suffered by women in the criminal justice system. I therefore hope that the Minister will respond positively to the amendment, and in particular that he will agree to the publication of a strategy on women's offending, followed by annual updates on the progress being made towards meeting each objective of the strategy.

[Baroness Gould of Potternewton]

My Lords, perhaps I may crave the indulgence of the House; I was not here for the start of the debate on the amendment. Unfortunately, noble Lords moved a bit fast and by the time I got back the debate had already started. I hope that I will be allowed to say a few words as my name is on the amendment.

I start by saying that in no way do I question the Minister’s commitment to reducing the number of women in prison, or to extending support in the community for women who need help rather than punishment. However, I question the Government’s ability to make that happen within the present structure. In Committee, the Minister said that,

“we are working across government as well as with the voluntary and community sector”.—[Official Report, 15/2/12; col. 875].

That is fine, but the rest of his response made it clear that there was little co-ordination across the various elements that were working with government.

This simple and no-cost amendment would provide a model to overcome what is clearly a deficit. It would provide the Government with a strategy for women offenders and women at risk of offending, as well as reviewing the impact of government policies on this vulnerable group. It would also be a driver for local policy to provide co-ordinated and effective work to ensure that women offenders receive the right support to stop their offending behaviour. It is a tried and tested model and it works.

The backgrounds of many women offenders are certainly multifaceted. I will not go into the details as I am sure noble Lords have already heard them. If the Government are genuinely serious about trying to reduce reoffending, we need a holistic solution from all the agencies responsible. Most women offenders have children or are the primary carers for disabled and elderly relatives, so there is an enormous effect on the lives of their families. Many women offenders become homeless: imprisonment will cause one-third to lose their homes and other possessions. They are inadequately prepared for release, with little support and advice on how to cope with the future. Is it any wonder that there is such a high level of self-harming among women who have little hope for the future?

There is no question that progress has been made in recent years, and many extremely committed individuals within and outside the Prison Service have been working tirelessly, but it is essential that the momentum is maintained. The responsibility for that is firmly at the feet of the Government. However, it cannot be achieved by tinkering around the edges, but only by having a well co-ordinated strategy and integrated alternatives to custody via an expansion of the network of community centres. Essentially for the Government, this would save money, which could be used elsewhere.

This year the Government will be reporting to the Convention on the Elimination of All Forms of Discrimination against Women—CEDAW—on progress that has been made since the last CEDAW report five years ago, when the committee welcomed the measures that had been taken but expressed concern about there still being too many women in prison. In their report to CEDAW this year, the Government state:

“The UK Government is committed to diverting women away from crime and to tackling women’s offending effectively. It broadly accepted the conclusions in Baroness Corston’s March 2007 report … and is supportive of reducing the number of vulnerable women in prison”.

However, they are going to have to prove that, by the policies and structures that are in place, because at the moment that sentence lacks viability. Contributions from organisations that work in this field will show that that is the case.

If the Government are, as they say, serious about reducing the number of vulnerable women in the criminal justice system, the structures must be put in place to ensure that the needs of these women are prioritised, not marginalised. Only by addressing the issues strategically and monitoring the outcomes of the work effectively will we see a real reduction in the number of women in prison and the level of reoffending.

I do not for one moment question that the Government accept the seriousness of the situation, but I hope that they accept it in the context of this amendment, which will make a great difference by changing the position we have now. I hope that the Government will feel that they can accept this amendment. If they feel they cannot —although I would have great difficulty understanding why not—perhaps they could agree with the principle behind the amendment, of the need for a co-ordinated structure, and come back to us with a new amendment on Report.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Gould of Potternewton Excerpts

Monday 5th March 2012 Lords Chamber

[The Lord Bishop of Exeter]

As the noble and learned Baroness, Lady Scotland, indicated, my friend the right reverend Prelate the Bishop of Leicester has his name down to amendments in this group and regrets that he cannot be in his place because of other duties in connection with your Lordships' House. His views have been fully set out, together with those of other leaders of faith communities, in a letter that has been circulated to your Lordships. For that reason, I do not want to repeat everything that has been said there—but for the record, it is worth quoting from the heart of that letter. It says:

“Legal aid is nothing short of essential for many victims of domestic abuse to escape the horrendous circumstances that they face. Without this support they would be unable to secure recourse in relation to fundamental issues such as injunctions, housing or access to children, potentially trapping them in a cycle of mistreatment and fear. It is clear that legal aid frequently allows for the resolution of domestic abuse cases before they escalate, in some cases avoiding serious injuries or even loss of life. We welcome the government’s decision, reflected in the Bill, to protect the provision of legal aid in many cases where domestic abuse is involved. Yet, by deviating from the standard definition of domestic abuse utilised across government departments and police forces, the Bill risks restricting the overall number of cases entitled to support, and consequently causing harm to many individuals and families. Similarly the proposed list of ‘objective evidence of domestic violence’, required in order to qualify for legal aid, appears restrictively narrow”.

At heart, this group of amendments is about the balance of risk. I fully understand that the Government are concerned with the risk of abuse of the legal aid system and the risk that people will make false claims under the guise of domestic violence claims, but there is an opposing risk of harm—indeed, possibly of death—to the victims of domestic violence. Were even one or two people to be harmed or to lose their lives as the result of not being able to access legal aid through there being an inadequate agreed definition and because of a too narrow evidential base, that would be unacceptable. I listened carefully to the noble Lord, Lord Thomas of Gresford. I welcome the amendment that stands in his name, and if push comes to shove I would probably support it, but Amendments 41 and 43 really are to be preferred.

I spoke earlier today about a basic principle in legal drafting being to spot worst-case scenarios well ahead of time. That point comes into play here but there is another important principle in working out the impact and the implications of any fully enacted law: it should defend the weak against the misuse of power by the strong. I am not convinced that, without the kind of definitions and evidential base that these two amendments call for, we would have got that entirely right. I am looking to the Minister to give some very strong comfort in that direction.

[Baroness Gould of Potternewton]

My Lords, I support my noble friend’s amendments. I shall concentrate my remarks on the particular difficulties and the reality that the Bill creates for women from the BME community, but before I do so I ask the Minister to clarify a point. The Government argue that too many cases of domestic violence are somehow not genuine and that the allegations are based on false claims. I was interested to discover the basis for that interpretation so I asked the Government the following Question:

“To ask Her Majesty's Government how many false claims of domestic violence have been recorded in the past five years; and how they determine that a claim is false”.

The reply that I received from the noble Lord, Lord Henley, read:

“The Home Office does not hold information on numbers of false claims of domestic violence. Investigating domestic violence is an operational matter for individual police forces”.—[Official Report, 9/2/12; col. WA 88.]

Can the Minister indicate what the detailed evidence was behind the claim of false claims of domestic violence? It is clearly not kept in the records.

Government acceptance of the ACPO definition could—I use the word “could” advisedly—be welcomed by BME women. As Southall Black Sisters made clear, and I thank that organisation for its briefing, a restricted definition of domestic violence would have an adverse impact on BME women particularly since many are often subject to immense psychological and emotional abuse, as its work on domestic slavery, immigration difficulties, forced marriage and honour-related violence shows. These cases often reveal patterns of immense financial, sexual and emotional abuse, and there are concerns that an unrealistic, narrow definition of domestic violence would exclude many vulnerable BME women from the crucial protection that they need. If the concept of any incidence of domestic violence is removed from the proposed definition, it seems that those women will find that their concerns are still valid.

It is ironic that for the purpose of making applications to remain in the UK permanently under the domestic violence rule in immigration law, the Government have accepted that a wider range of evidence from a variety of sources is acceptable to show proof of domestic violence. This includes evidence from the medical professions, women’s organisations, refuges, advice centres and so on. However, they seek to restrict the evidential requirements for the purposes of legal aid. Again, this shows inconsistency in how the Government are addressing the problem of domestic violence across all state departments.

It is believed that the restrictive nature of the domestic violence gateway criteria will have a disproportionate effect on black and minority ethnic women. The recent survey by Rights of Women and Welsh Women’s Aid showed that fewer than half the women who reported domestic violence to a specialist agency had the requisite evidence to obtain legal aid under the proposed gateway criteria; and that more than 50 per cent would not have been able to provide the evidence within the 12-month limit if it applied. Experience has shown that at least 75 per cent of BME women who complain of domestic violence and abuse do not have the type of evidence stipulated in the gateway criteria. Where do they go?

The reason why they have extra difficulties is the many internal and external barriers that they face in seeking outside help. Reporting domestic violence is, in itself, an overwhelming task for them. On average, BME women are likely to tolerate domestic violence for 10 years before seeking outside help. In the culture of many minority communities, women are expected to internalise abuse and violence. Removing meaningful legal protection from BME women will push them into community forums such as religious arbitration tribunals, where they will be encouraged to reconcile with abusive partners to uphold religious and family values, with the consequence of continuing violence and abuse. If not amended, the Bill will only make their position worse.

The survey to which I referred earlier also showed that at least 19 per cent of women have no corroborating evidence other than from a women’s refuge. Those working with BME women believe that the figure is much higher for minority ethnic women because of the uniqueness of their position.

The amendments that we are debating today will be of further assistance to BME women since legal aid does not appear to be available in domestic violence cases for those against whom a protection order is sought—that is, the alleged perpetrator. Removing legal aid from perpetrators in these cases will increase the number of women who face questioning in court from the perpetrator of the abuse, rather than from their solicitor. This could involve the perpetrator cross-examining a woman in detail on her account of the physical or sexual violence that she has experienced. Legal aid for court hearings should be available for those against whom a domestic violence injunction is sought to ensure that women are not revictimised in this way. This is especially troubling for many BME women who are subject to intense community and family pressures to remain silent or reconcile, even in the face of violence and abuse. Many are unfamiliar with the legal system, traumatised and often do not feel confident about speaking in public. This proposal will completely disadvantage them in the legal process, since many will not want to face their perpetrators. It will have a profoundly deterrent impact on such women.

Finally, if legal aid is no longer available for immigration cases, it is unclear where people who are unable to pay privately for advice will go, or how the quality of that advice will be ensured. There is no indication of any sources of immigration advice for those who are unable to pay for it privately. Not-for-profit organisations are unlikely to be able to step in as they will not meet the regulatory requirements or be able to secure the necessary funding. Maybe MPs’ surgeries will be the only places remaining to which individuals can go for immigration advice.

--- Later in debate ---

I could throw the question back to the noble Baroness: where is the allegation that this is based on some specific examples?

[Baroness Gould of Potternewton]

Perhaps I may answer that. I suggest that the Minister reads House of Commons Hansard to see what his colleague actually said.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Gould of Potternewton Excerpts

Wednesday 15th February 2012 Lords Chamber

Moved by

[Baroness Gould of Potternewton]

182A: After Clause 120, insert the following new Clause—
“Women’s Justice Strategy Commission
(1) There shall be body known as the Women’s Justice Strategy Commission for England and Wales (“the Commission”).
(2) The Commission shall consist of no less than 10 and no more than 20 members appointed by the Secretary of State.
(3) The members of the Commission—
(a) shall include persons representative of government departments and public bodies whose responsibilities have relevance to the treatment of female offenders and the prevention of offending by women (including, but not limited to, responsibilities for criminal justice, housing, education, employment, benefits, social services and health services), and(b) shall work with specialists who have the experience and knowledge to provide the necessary expert advice.(4) The Commission shall have the following functions, namely—
(a) to develop a strategy to reduce offending by women and for the delivery of appropriate and effective services to women in the criminal justice system,(b) to monitor the extent to which the aims of that strategy are being met,(c) to set standards with respect to the specification, commissioning and provision of services to women in the criminal justice system and services to reduce offending by women,(d) to make grants, with the approval of the Secretary of State, to bodies to enable them to develop good practice in the provision of services to women in the criminal justice system and the prevention of offending by women.(5) The Commission shall provide an annual report to Parliament relating to its discharge of the functions specified in subsection (4).”

[Baroness Gould of Potternewton]

My Lords, 19 years ago I was proud to make my maiden speech on women in the criminal justice system. In that speech I highlighted the disproportionate and discriminatory response of our justice system to women offenders. I spoke of the complex needs of women offenders and the fact that many women are locked up on short sentences for petty crime, causing untold destruction to their families. I spoke about how the prison system does not do what it should for women offenders, and how we must look at more effective ways of tackling women’s offending behaviour in the community.

Since I made that speech, a number of high-profile reviews of women in the criminal justice system have been published and recommendations have been taken on board by successive Governments. Still, though, the problem of women in prison pervades; 15 years ago there were some 1,800 women in custody but today there are over 4,000. In 2007 my noble friend Lady Corston—at this point I must give her apologies; she has had to leave for family reasons at this late hour—produced a compelling review of women with particular vulnerabilities in the criminal justice system. The Corston report highlighted the specialised and specific needs of women offenders that are being wholly neglected in a justice system designed for men, even though the complex and multiple needs of women offenders and women at risk of offending are well documented. Domestic and sexual violence, poverty, mental illness, problematic substance misuse and homelessness are just some of the issues facing many women offenders. Often when they go into jail there are dire consequences.

I remember listening to the male governor of Styal women’s prison, who had spent his career in men's prisons, talking about his experience of arriving at Styal. He spoke of how shocked he was at the levels of self-harm. He described how in a male prison there was an average of six prisoners on special observation for self-harm each day, while in Styal it was an average of 50. He described the high levels of mental health problems and the fact most women were there on short sentences, some women for eight days or even less. I remember his words: “I’ve never seen such a concentration of damaged, fragile people”. In this weekend’s Sunday papers, he reiterated that statement, which he made a few months ago.

When women are sentenced to custody, that has a profound effect on family life. Many women have children or elderly or disabled dependants. Each year, 18,000 children are separated from their mothers by imprisonment, and just 5 per cent of those children will get to stay in their homes when their mother goes to jail. In 2006, the Social Exclusion Unit found that only half the women in prison who lived with or had contact with their children prior to imprisonment had received a visit from their children since going to prison. Sending women to prison is also, for the most part, ineffective. Two-thirds of women serving sentences of 12 months or less are reconvicted within a year of release. The impact on the children of those women cannot truly be imagined, but we know that it is dramatic.

We conclude, as I concluded in my speech 19 years ago, that our current approach to women in the criminal justice system is not working. At this point, I declare an interest as patron of the women’s centre in Brighton and Hove, which provides an excellent example of cost-effective treatment of women offenders in the community that works. The Inspire project is a partnership between five women’s organisations, all of which play a part in delivering a holistic service to women offenders that addresses their complex needs. It helps women with accommodation, employment, health and well-being, and drug and alcohol problems, debt and financial issues, children and families, and experience of domestic and sexual violence. Women engage well with the services and the project’s success in reducing reoffending is to be commended.

The Inspire project is one of a number of innovative projects that work with women offenders across the community. These projects are not only effective in reducing women’s offending but very cost-effective. The cost of a women’s centre placement is less than £15,000 a year, compared with the £56,000 it costs to keep a woman in custody. The cost-saving arguments are clear and will, I am sure, be of interest to the Government.

The Bill represents an opportunity to bring about the radical change that is needed to reform the criminal justice system into one that works for women. That is why I and others were so disappointed to see that women had not been properly considered in the Bill, which was my motivation for tabling this amendment. Amendment 182A calls on the Government to establish a cross-departmental commission with responsibility for maintaining effective governance and the oversight of women’s justice. This is much needed to ensure that women are given the support they need to stop their offending behaviour and to become active members of the community. The amendment offers an effective way of ensuring that the needs of women in the criminal justice system are considered at the highest level of decision-making within government.

The commission would draw together representatives from government departments and public bodies whose responsibilities are relevant to the needs of women in the criminal justice system. It would include representatives from justice, health, social services, housing, education and employment. These key agencies would come together to develop, implement and monitor a cross-departmental strategy to reduce offending by women, and to ensure that the right services for women offenders are provided at the right time. It would also provide a report to Parliament each year, documenting progress through measurement, monitoring and accountability.

Amendment 182B, in the name of the noble Lord, Lord Ramsbotham, on women in the criminal justice system, also calls on the Secretary of State to establish a women’s justice commission, although it also asks for the commission to remain independent of government. However, I wonder whether there is not a case for exploring how we could bring the two concepts together.

Finally, it is essential that appropriate arrangements such as these are in place to maintain the effective governance and oversight of women’s justice. Without them, I fear that the needs of women offenders will continue to be marginalised and go unmet. I will then have to make another speech about women in prison in years to come—although certainly not in 19 years. I sincerely hope that that will not be necessary. I beg to move.

[Lord Ramsbotham]

My Lords, as the noble Baroness, Lady Gould, said, it is a great pity that the position of women in the criminal justice system was neither included in the Bill nor debated when it was being processed through the other place.

I was very glad that so many recommendations from the excellent report of the noble Baroness, Lady Corston, were accepted by the previous Government and supported by the coalition. Many repeated what I recommended in two earlier thematic reviews on women in prison in 1997 and 2001; that the Prison Reform Trust recommended in a report chaired by Professor Dorothy Wedderburn in 1999; and that the Fawcett Society recommended in three reports published between 2002 and 2006. Like the noble Baroness, we all appreciated that too many women who should not be there were in prison and that, while there, their treatment and conditions were not fit for purpose. I was motivated by my shock at finding, among other things, that women were being chained while in labour and having any injuries recorded on diagrams of male bodies because no diagrams of female bodies were issued. Therefore, while warmly welcoming the report of the noble Baroness, I must admit to my disappointment that it was not until they appeared in a report which the previous Government themselves commissioned that they either noted or took action on the recommendations for essential improvements that had been made earlier.

Several times during the passage of the Bill, the Minister has told us that such and such an amendment is not necessary because a group has been appointed in the Ministry of Justice or NOMS to look at what is being put forward. I have to admit that every time he does I clench my fists and groan inwardly. Policy-making groups inside ministries are neither capable of designing and overseeing, nor designed to direct and oversee, the implementation of strategy—a word that is frequently misused because it is so imperfectly understood. A strategy is an overarching direction that binds everyone and everything involved in achieving a particular purpose. I have quoted previously the senior civil servant in the Home Office who berated me, saying that she wished I would stop talking about strategy because it was not a strategy that was needed but strategic direction. When I asked her what she meant, she replied, “Top-down, of course”, implying that every ministerial utterance was to be regarded as strategic direction. No wonder offender management is in a muddle.

Strategies require implementation, not just verbiage, and verbiage does not become strategy just because it comes from the top. I plead guilty as charged by any noble Lord who may accuse me of allowing my military background to influence my understanding of strategy, as well as my appreciation that nothing involving people will succeed unless they are overseen and led. That background fuelled my appreciation that all was not well with offender management in general, and with the treatment of and conditions for women in particular, when I saw what was and was not happening during my first inspection of Holloway more than 16 years ago. I admit to my astonishment when the then director-general of the Prison Service told me that there was no such person when I asked to see the director of women’s prisons, who I presumed was responsible and accountable for their custody. The Prison Service, he told me, thought that a civil servant in the policy branch was quite sufficient. When I asked him who the governor of a women’s prison could go to for help and advice, he said the area manager, who was responsible for the budget but might or might not have worked in a women’s prison. In my report on that never to be forgotten inspection, I included a recommendation that a director of women’s prisons be appointed.

Since then, I have watched a series of expensive changes to the bureaucracy of offender management predictably fail to bring about the desired improvements on the ground because they did not include the appointment of individuals responsible and accountable for overseeing implementation in different types of prison and with different groups of prisoners. This, too, surprises me because Ministers and their officials are ignoring evidence that is before their eyes every day. My Army contemporary, General Sir John Learmont, came to exactly the same conclusion for exactly the same reasons when invited by the then Home Secretary, the noble Lord, Lord Howard of Lympne, to inquire into the escape of high-security prisoners from Parkhurst in 1994. However, his recommendation—that a responsible and accountable director of high-security prisons should be appointed—was accepted. As a result, they remain the only properly managed part of the prison system, in which good practice somewhere is turned into common practice everywhere, and incoming governors are required to carry on from where their predecessors left off. Why on earth has that success not been repeated with and for other groups?

I repeated my recommendation in every other inspection report and the thematic reviews of women in prison that I mentioned earlier. Those reviews were only about prisons, but I was immediately attracted by Professor Wedderburn’s recommendation that there should be a women’s justice board, on the lines of the Youth Justice Board, that was responsible and accountable for women everywhere in the criminal justice system. I warmly supported the proposed wider responsibilities of the chairman seeing my hoped for director of women’s prisons as an essential, responsible and accountable subordinate. I also saw the chairman sitting alongside the director-general of the Prison Service, the director of the National Probation Service and the chairman of the Youth Justice Board on an executive board in which each was responsible and accountable to Ministers for their part of the offender management system.

--- Later in debate ---

Certain questions were asked about various bodies that were referred to. I do not know whether we have renamed them, but I will check. We are certainly continuing a lot of the cross-departmental work. I am also not sure whether the resources are exactly as the noble Lord left them. I suspect that some may have fallen foul of the necessary cuts that my department faced. However, I repeat that we are focusing money where we think that it can be best used. I ask the noble Baroness to withdraw her amendment.

[Baroness Gould of Potternewton]

My Lords, I thank the Minister for his response. I was fascinated to hear about the many things that he said were happening. However, from what he said I failed to see a strategy that went across government, and a co-ordination of all the things that he talked about. That will be essential if we are to solve this serious and urgent problem.

I thank all noble Lords who spoke, and in particular the noble Lord, Lord Ramsbotham, for agreeing to get together and draft a joint amendment on Report. The Minister said that we would not be satisfied with his answer, and we were not. We will almost certainly come back on Report. Perhaps he thought that our case was not strong enough. We will try to make a stronger case next time. I fail to understand why, despite all the graphic consequences being described, the amendments were not seen a little more sympathetically. I beg leave to withdraw the amendment.

Amendment 182A withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Gould of Potternewton Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Gould of Potternewton]

My Lords, there is so much in the Bill to be concerned about. The Bill is discriminatory and will entrench inequality for women, people from minority ethnic groups, disabled people and other groups facing discrimination, all of whom will be disproportionately affected, as I am sure we will discover as we go through it. I wish to follow my noble and learned friend Lady Scotland and deal with domestic violence, and I will go through the consequences of the Bill in some more detail.

First, I congratulate the National Federation of Women’s Institutes on the work it has undertaken in talking to vulnerable women, who have made it clear that the Bill will leave them without support or access to protection under civil remedies. As my noble and learned friend says, the Bill demonstrates a complete lack of understanding of the nature and dynamics of domestic violence. It flies in the face of the violence against women and girls strategy produced by the Government only last year. The strategy stated that a,

“robust cross-government approach underpinned by a single agreed definition”,

is required. Perhaps the Minister can explain why the definition in the Bill is not the one used by other government bodies, the one in the national strategy or the one used by the CPS and ACPO, which defines domestic violence as,

“any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional)”.

Domestic violence takes all these forms, but the definition, quite deliberately, does not take that into account and in no way reflects the Government’s stated aim of affording access to justice and legal protection to victims of domestic violence. How much is that commitment honoured when looking at the criteria required for evidence of domestic violence? No one challenges that there have to be criteria and evidence, but they must reflect the reality of life for domestic violence survivors.

The Minister in the Commons stated that the Government had to engage in a difficult balancing act in providing legal aid for genuine victims of domestic violence without encouraging false allegations. I want to look at what he means by balance. Under the Bill, to get legal aid a domestic violence sufferer must have obtained one of four kinds of civil injunctions or a criminal conviction against the perpetrator, a multi-agency risk assessment conference, which is used only for a few exceptionally serious cases, or a non-molestation order. These do not reflect the reality of how women react and respond to domestic violence; 70 per cent of women choose not to go to the police and very few get non-molestation orders.

How is it “balance” when an overwhelming allegation of domestic violence, supported by witness evidence, will not qualify for legal aid under the law? One would assume that a doctor would be a credible witness, or that staff in accident and emergency departments, where the battered victim is regularly seen, would be credible witnesses, but no.

The Minister in the Commons said:

“we are not convinced that they”—

the medical professions—

“would be best placed to assess whether domestic violence has occurred. They might witness injuries, but it might be difficult for them to determine how they had occurred”.—[Official Report, Commons, 31/10/11; col. 688.]

The important word is “might”. What if they are certain that the victim’s injuries come from domestic violence? She will still not get legal aid under the criteria. The word of a neighbour who may have heard blows and rescued the victim from the violence she was suffering, or even if the police attended and saw her being beaten, is insufficient to meet the criteria. Here is another unbelievable quote from the Minister:

“the investigation could be inconclusive, or the police might determine that domestic violence has not taken place”.—[Official Report, Commons, 31/10/11; col. 687.]

If the woman asks for an injunction, judges often tell a perpetrator that he can save the cost of a hearing by undertaking not to hurt her in future. The court registers that undertaking. It is a contempt of court if the man breaks it, but it will not help her to get legal aid. Should she get admission to a refuge, although the staff will be experienced in assessing complaints it will not get her legal aid. As the Minister said:

“to include admission to a refuge in the criteria would be to rely on self-reporting”.—[Official Report, Commons, 31/10/11; col. 688.]

For a woman suffering domestic violence, self-reporting might be absolutely essential. A victim may have eye-witnesses, police and medical evidence, records from refuges and perpetrator programmes, undertakings not to assault, and photographs of injuries, but she will not get legal aid.

A further barrier in the criteria for assessing legal aid is the restrictive 12-month timeframe. This is sheer nonsense. The woman may delay reporting for a number of reasons and the problems that require legal aid may continue to affect her more than 12 months after she has experienced violence. There is example after example of women who, post-separation, have spent many years being harassed and stalked by the perpetrator. The 12-month timeframe fails to reflect this. A time limit of any duration, particularly such a restrictive one, will take many individuals out of eligibility.

Then we come to mediation. Although information from the Ministry of Justice shows that currently more than 50,000 couples are referred to mediation services annually, just 13,500 of those couples participate in mediation. It appears that little research has been done to ascertain why that is the case. Mediation is not always less confrontational as the Minister seems to believe. It can place the victim at further risk of violence or abuse. It gives the perpetrator the opportunity to continue to have contact with the victim and can cause revictimisation. Evidence shows that mediation works best when entered into voluntarily, but sometimes that is not the case. One victim identified that she was bullied and manipulated in mediation and found it hard to stand up to her “ex”. The Bill also assumes that parties will be able to come to agreement in mediation. This, again, is not always the case. There may be partial resolution. In those circumstances, can the Minister say what happens next? What is the victim expected to do?

Two further proposals will make it hard for victims to take action. Reference has already been made to the telephone gateway—the first port of call—and talking to someone who may have no legal qualifications but is expected to make a legal assessment. Disclosure is difficult enough, so at least you would expect to speak to somebody who understands what you are talking about. This proposal is certainly not appropriate for people who have language difficulties or mental health problems or are in distress.

In addition to my concerns about the process I have a number of questions. Will there be a free phone number? Will the conversations be recorded, kept securely and quality-controlled in case of further litigation arising? How will the number be publicised? It has been suggested that the victim might represent herself in court. Domestic abuse involves abuse of power. Many victims, whether subjected to physical power or other forms of abuse, do not have the capacity, skills or expertise to face and question the perpetrator in court. Not only would it be a traumatic experience, it could also put a victim in further danger.

This Bill will mean that too many women will have no alternative but to stay in an abusive relationship, with serious consequences not only for themselves but for their children. I thought that those days were past and that we were moving away from women living in fear and children living in violent households. This Bill will bring that back.

It is said that the Prime Minister is to appoint someone to look at the effects of policy on women. I suggest that she examines this Bill and its consequences on women's lives; maybe then will women who are victims be listened to.

Legal Services Act 2007 (The Law Society and The Council for Licensed Conveyancers) (Modifications of Functions) Order 2011

Baroness Gould of Potternewton Excerpts

Monday 27th June 2011 Grand Committee

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Legal Services Act 2007 (The Law Society and The Council for Licensed Conveyancers) (Modifications of Functions) Order 2011.

Relevant Document: 23rd Report from the Joint Committee on Statutory Instruments.

[The Deputy Chairman of Committees (Baroness Gould of Potternewton)]

Moved formally?

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

Moved formally. Sorry.

House of Lords: Reform

Baroness Gould of Potternewton Excerpts

Wednesday 1st December 2010 Lords Chamber

[Lord Pearson of Rannoch]

My Lords, if it were true—

[Baroness Gould of Potternewton]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, there is time for only one more question. Noble Lords cannot all stand up at the same time.