Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 5th March 2012 Lords Chamber

[Lord Clinton-Davis]

The amendment sums up precisely why so many of us entered the law in the first place. I will not take up much time—only a few seconds. Essentially, why the Minister is resisting this amendment is beyond me. It goes to the very heart of why we join the legal profession as solicitors and barristers in the first place. I see him shaking his head but I do not know why. The amendment summarises precisely why we join the legal profession and, for that reason, I support it.

[Baroness Butler-Sloss]

My Lords, I am sorry that yet another lawyer is speaking, but I want to make a very brief point. In 1215, King John was persuaded to put his name to the Magna Carta, which had a very clear definition of access to justice. We have now, in 2012, nearly reached another centenary of Magna Carta. It would be helpful if current legislation made the definition equally clear. The provision, as it stands in Clause 1, lacks the clarity of the amendment in the name of the noble Lord, Lord Pannick. I cannot understand why, in these straitened times, the Government think that this measure will cost them any more money. It would act as a beacon and a pointer to what should be done in less straitened times when money is available to make this provision. I support the amendment.

[Lord Thomas of Gresford]

My Lords, I am surprised to hear the noble and learned Baroness, Lady Butler-Sloss, suggest that the Bill should abolish Magna Carta.

[Baroness Butler-Sloss]

I did not say that.

[Lord Thomas of Gresford]

Perhaps that is putting it a little too high. However, ever since Magna Carta, access to justice has been a fundamental constitutional principle, and the Bill has nothing to do with changing that principle. My objection to the amendment is simply that it is completely otiose and unnecessary to have statements of principle that have been with us since 1215 restated in this way. The noble Lord, Lord Pannick, said that he does not intend to trump Part 1 and asked whether a statement of legislative purpose was necessary. The noble Baroness, Lady Mallalieu, said that she was against vague statements of principle at the beginning of a Bill, but seemed to suggest that this Bill was a different case. The Bill is not about abolishing access to justice but about rebalancing it in certain ways.

I have been involved in the legal profession for nearly 50 years and in my experience the greatest change to legal aid occurred when the previous Government abolished it for personal injury cases, and against the principles of maintenance and champerty, about which I have bored your Lordships many times, decided to introduce conditional fee agreements with associated insurance. The Bill follows that line by emphasising the ability of litigants to take what is now a well used way—I accept that—of obtaining access to justice. Nothing in the Bill stops people bringing actions. Legal aid may not be available but the Bill makes it clear that there are other ways of approaching the court.

The success fees introduced in 1999, which have no relation whatever to the risk solicitors run in taking on no-win no-fee cases, have increased, along with the dreadful increase in the size of ATE premiums. When the noble and learned Lord, Lord Irvine of Lairg, who I am pleased to see in his place, introduced the concept in 1999, he was talking about ATE insurance premiums of £100 or £300—I have seen that in Hansard—as opposed to today’s £50,000, £80,000 or £100,000 premiums. The cost of litigation in this country has escalated to a disgraceful level. The Bill increases access to justice by squeezing out of the system unnecessary costs and expense, which have gone to lawyers and insurance companies. We will debate in detail the respective provisions and where we can do better. However, it must be recognised that even at this stage the Government have made significant and substantial concessions to improve various aspects of the Bill. I am sure that they will continue to do so in responding to some of the amendments for which we on these Benches will argue. Therefore, I regard this amendment as a statement not of principle but of unnecessary verbosity that should not enter the statute.

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[Lord Thomas of Gresford]

My Lords—

[Baroness Butler-Sloss]

My name is on this amendment so perhaps the noble Lord, Lord Thomas of Gresford, will permit me to speak after the noble and learned Baroness. I will speak briefly to underline the points because she made them so well that it is not necessary for me to speak at any length.

I know very well that the Government recognise the seriousness of the impact of domestic violence, which as we all know is a serious scourge in family life. It is worth remembering that it is not only a serious scourge for the victims, because so many of these women and men—and there certainly are some men—have children. It is the children who probably suffer most, not only short term but long term, in their ability to cope with life. Consequently, if the women—it is mainly women—are unable to get to court with the appropriate help, they are not the only ones who suffer, because their children suffer also. I find it difficult to understand why the Minister cannot accept the ACPO definition. There is not much wrong with the Government’s definition but it is not quite as broad as the ACPO one. I have never understood the police to be unduly generous or overenthusiastic in their approach to these issues.

I underline what the noble and learned Baroness said on Amendment 43. If Amendment 43 is not accepted, either by the Minister or this House, a large number of victims will fall through the net. I find it hard to understand why that would be in circumstances where a doctor identifies domestic abuse or a judge or magistrate have found it by, for instance, the perpetrator admitting it and giving an undertaking that he will not do it again, so there is not a court order. I have professional experience of endless cases of domestic violence where it was much easier to get the man—usually the man—to promise not to do it again and to leave the house rather than having a battle over the individual events which he was not prepared to accept. It was absolutely understood in the court that he had done it, yet that will not now be acceptable for receiving legal aid.

There is also no shortage of credible witnesses suggested under new sub-paragraph (k), proposed in Amendment 43,

“from a counsellor, midwife, school or witness”.

That credible, documentary evidence from a responsible person would be acceptable to a court but will not initiate that particular victim getting the help that he or she deserves. I ask the Minister to look again at this absolutely effective group of circumstances in which victims tell their story. It should get to court with the appropriate help.

My last point, briefly, is on the 12 months. Again, as the noble and learned Baroness said, a lot of women take a very long time—some men take even longer—to get to the point of disclosing what happened. Sometimes they get away and do not disclose it until after 12 months. That does not mean that it does not exist or that they are not at risk. To have this arbitrary period of 12 months is, for those who do not get there before then, another real obstruction to the Government’s declared objective to try to stamp out domestic violence. For those reasons, I strongly support the noble and learned Baroness.

[Lord Thomas of Gresford]

My Lords, Amendment 39 is in the names of my noble friend Lord Macdonald of River Glaven and me. I am very sorry that he is not able to be with us at this particular point because he made a thoughtful and memorable speech in Committee that those who were present will recall. It was based upon his experience. As I recall it, the thrust of his speech was that we need to get up to date on the issues of domestic violence and not deal with them as we did 10 years ago.

I very much welcome Amendment 42 in the name of my noble friend Lord McNally. It has been criticised as being a narrower definition than that in the name of the noble and learned Baroness, Lady Scotland. I do not see it that way. What is omitted is,

“any incident or repeated incidents of threatening behaviour”.

The simpler and more concise words “threatening behaviour” are there instead. Anybody knows that just one incident of threatening behaviour could, for example, land someone in court. The other words that are omitted are,

“and including acts of neglect, maltreatment, exploitation or acts of omission”,

which must surely come within the definition of abuse of an emotional kind.

I turn to our Amendment 39, as opposed to Amendment 43 tabled by the noble and learned Baroness, Lady Scotland. There are certain differences between the two; for example, my noble friend Lord Macdonald and I suggest that domestic violence,

“will be presumed on an application for civil legal services”.

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[Lord McNally]

The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, our intention is that they will be set out in regulations under Clause 10. We believe that it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation, which can be amended to respond to particular issues which may arise in the practical operation of the scheme.

[Baroness Butler-Sloss]

I am very interested in what the Minister is saying, but perhaps I might ask him to explain whether the points in Amendment 43 will be covered in regulations. If they are, then this amendment is not necessary, but if the intention is not to cover all of those, then the amendment would remain necessary.

[Lord McNally]

If I go on, all will become clear.

We indicated the intended forms of evidence in consultation and listened to views expressed in response. As a result, we widened the range of forms of evidence to include evidence from a multi-agency risk assessment conference, a finding of fact by the courts and the fact of a child protection plan being in place. This last point is particularly important because we moved from an intention just to protect adult victims of domestic abuse to include victims of child abuse by this means.

The allegation that we heard again today was that the Government’s criteria will still miss a great number of genuine victims, and various pieces of evidence were adduced to support this. However, the evidence referred to domestic violence victims as a whole—highlighting their difficulties in dealing with the civil or criminal justice systems, for example. We are dealing with a subset of that group: those who seek private family law legal aid. They will have slightly different characteristics from domestic violence victims as a whole. By definition, they will be engaged in the civil justice system. A significant number—there were nearly 10,000 in 2009-10—will seek civil legal aid for a protective order or injunction at the same time as they seek it for their private family law matter. They will all meet the evidential criteria.

We know that in total there were 70,000 legal aid family cases in 2009-10. I will compare that figure to the prevalence of the types of evidence that we are requesting. Around 24,100 domestic violence orders were made in 2010—the great majority with the benefit of civil legal aid. Around 74,000 domestic violence crimes were prosecuted in 2009-10, and there were 53,000 domestic violence convictions. Around 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months to June 2010. In future there will also be those with ongoing criminal proceedings for domestic violence, and those in whose cases a finding of fact in the courts has occurred. Clearly the figures will overlap. However, what this points to is that a significant proportion of the 70,000 private family law cases that we currently fund will continue to be funded. We think that the proportion will be around one-quarter, which matches our rough estimate of the prevalence of domestic violence.

With this in mind, the Government consider that we have got the balance on evidence requirements about right. The forms of evidence we intend to accept will meet a high standard of objectivity. However, I have heard what has been said during the debate, and of course respect the wisdom and experience of those relaying their views to me. We are therefore prepared to go further and accept undertakings as evidence. We are satisfied that undertakings are sufficiently objective and fit with what we consider the right approach. We remain of the view that these forms of evidence are better left to regulations rather than placed into primary legislation. They are points of admittedly important detail, but ones that may be subject to change as the scheme settles in.

I hope that my noble friend Lord Thomas will be reassured by what I said and will not press his amendment, so that we can deal in regulations with the matters covered by it. I also hope that, now she has seen how far we have gone on that matter, the noble and learned Baroness, Lady Scotland, will be persuaded to withdraw her amendment.

As I said, it was extremely useful in the debate to put on record the Government’s determination to combat domestic violence with the entire panoply of services and funding at our disposal. Here we are dealing with a subset of those affected by the issue—a fact that not all speeches today covered. We have tried in our amendments and in the concessions that we made to re-emphasise that we understand the importance of the issue and are determined to make sure that we get the balance right. I hope that neither my noble friend nor the noble and learned Baroness will press their amendment, on the understanding and assurances that I gave of using my noble friend’s amendment as the template for what we will do in regulations.

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[Lord Wallace of Tankerness]

For example, guidance will be given under Clause 9 on exceptional funding, which could relate to classes of cases, but the criteria that are set and are there in regulations will be there by secondary legislation. That can in no way be trumped. Secondary legislation will have to be approved by your Lordships' House by the affirmative procedure. That cannot be undermined or circumvented by guidance. When the regulations are eventually brought forward, we will have an opportunity to look at that. That will be the primary source and it would not be possible for the Lord Chancellor by some other means to undermine what was in the regulations. If you wish to change them, you have to come back to Parliament with further regulations and Parliament would have a further opportunity for debate.

[Baroness Butler-Sloss]

The Minister may have noticed that I have kept quiet on this amendment until now, but I am genuinely in difficulty in understanding the point made by the noble Lord, Lord Newton, about a civil servant working to a Minister. If, as the Bill requires, the director is a civil servant, is it not his duty to work to a Minister? In which case, how will he run an independent organisation within a government department? I am sorry, I do not understand.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

The noble and learned Baroness puts her finger on it, as she often does. Yes, it is to be a civil servant. I indicated earlier that in such a crucial area of individual cases, that individual will be a civil servant appointed on merit, who will not be subject to ministerial interference. There is common ground that that is quite proper.

As the noble and learned Baroness rightly said, there are other aspects of a civil servant’s work where that relationship with the Minister is different. I hasten to add—I think the House has got the message—that there is no question of interference in the individual cases. I sought to make the point that incorporating the words “independent” or “independence” into the clause could upset the balance that would apply in other parts of the director’s work. I think the House would generally accept that there ought to be that relationship between the Lord Chancellor and the director. We do not wish inadvertently to skewer the whole architecture of this when the Government share what is at the heart of everyone’s perfectly legitimate concerns. We have enough clear provisions in the Bill to secure the independence of the director in making these individual decisions.

I ask noble Lords to reflect on that. We do not wish inadvertently to change the whole structure of the Bill, given that the point of concern is properly addressed by the prohibition on interference, buttressed by the many ways in which Parliament and others will be able to look at the way the powers are exercised. That is transparent. On that basis, I invite the noble Lord to withdraw his amendment.

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[Lord Judd]

My Lords, frankly, it beggars belief that in an area which involves so much social distress and suffering the Government should rush into this legislation without having considered its impact and consequences. In terms of social irresponsibility, it is difficult to speak too strongly about that. Moreover, such a course of action makes absolute nonsense in terms of public expenditure. If we insist on cuts of this kind in a front line where we hope that things can be put right in time, expenditure on the cases concerned may considerably increase future pressure on the public purse, and more widely because of the contaminating effect of the cases concerned. This is short-sighted, counterproductive government of the worst order.

I have spent a great deal of my life working in the voluntary sector and I know that it is not just the voluntary organisations in the legal sector which will be affected, given that they will have tremendous additional burdens in the aftermath of the introduction of this measure, but that all the other voluntary organisations working in the front line of social action will have to pick up the pieces and the consequences of it. This is happening at the very time that the resources available to such organisations are diminishing and they are becoming frantic about how they will continue their work. This amendment is crucial. I cannot say how strongly I support my noble friend in having put it forward.

[Baroness Butler-Sloss]

My Lords, I hope that I may add a brief word about law centres and other advice centres. Taking legal aid away from a huge number of areas, particularly private family law, which concerns me, but also social welfare, will result in a great many people wondering what to do. Those are the people who currently go to law centres and other advice centres. I was talking to another Member of this House, who is not present in the Chamber, who told me that she used to work in a law centre as a non-lawyer and that the staff in that law centre spent their time dividing the wheat from the chaff and persuading people that they did not have a chance in court. I hope that the Minister, and particularly the Justice Secretary, understand the impact on courts and tribunals of people who do not have legal advice appearing before the various tribunals and clogging up the works. In 12 months’ or two years’ time there may be no assessment of whether the absence of law centres and other advice centres has exacerbated this problem to an enormous degree. However, I hope that the Government may realise at that stage that they need to provide more help. Good points have been made about areas in which I have experience.

[Lord Ramsbotham]

My Lords, I put my name to the amendment for one simple reason: it drew attention to impact assessments, which are a very important part of legislation. I have mentioned in connection with other legislation that has come before the House that impact assessments in general are not well done. What has been said from around the House during this debate proves the point that in this Bill it does not appear that the impact assessments on all these aspects have been carried out sufficiently well to satisfy Members of the House that we are launching in a direction in which we ought to go.