Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Bishop of Exeter and Baroness Gould of Potternewton

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.