Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Scotland of Asthal Excerpts

Wednesday 25th April 2012 Lords Chamber

Moved by

[Baroness Scotland of Asthal]

Leave out from “House” to end and insert “do insist on its Amendments 2B and 196B”.

[Baroness Scotland of Asthal]

My Lords, I listened with very great care to what the Minister said in support of his Motion. I listened to see whether there had been significant movement in the Government’s understanding of the damage that the restriction that remains in relation to domestic violence provision would do to victims, to their children and to the men engaged in this sort of behaviour. I have to say that I listened with disappointment.

I do not hesitate to adopt all the comments made by the noble Lord, Lord Pannick, on the Government’s approach to Part 1 of the Bill. I reiterate immediately my appreciation for the fact that the Government have at last moved on definition, and to an extent in relation to the evidential gateway, but I find myself echoing what was said by the noble Lord, Lord Pannick: it was something that we should not have had to ask and press for for so long. It should have been freely and immediately given because it was founded on a fundamental joint understanding of domestic violence, which had been shared, I believed, by all sides of the House for the past 13 years of our Government, and which I was innocent enough to believe was still shared and understood today.

In looking at the amendments, I reassure the noble Lord immediately that I understand that the Government seek to break with the past and with the way in which we provided justice for individuals in our country through the provision of legal aid. That is something that I understand and regret. I also acknowledge that it is the Government’s intention to limit their exposure to costs incurred by legal aid and to narrow the scope of provision. At the moment, 265,000 people a year get legal help. That will reduce by 79 per cent to 55,000 under the Bill. I understand that that is the Government’s intention and it is something that I regret. At the moment, 112,500 people a year get legal representation. This will reduce by 40 per cent to 67,500 people a year under the Bill. That is something I also regret.

The impact that changes to private family law and legal aid will have on women is another area where it was accepted in the equality impact assessment in the reform of legal aid consultation that it would be the largest number of potential users of legal aid who would be affected by these reforms. It was also accepted that clients in this category were more likely to be female than in any other category of law except education. They represent 63 per cent of total clients, excluding those who have not identified their gender. This proportion exceeds that of the 16-plus population, which is 51 per cent, and that of all affected cases involving females, which is 56 per cent.

I accept that it is an intentional policy decision by the Government to remove that support. I have just told the noble Lord that that is something that I regret, but I accept it. However, we have to look at the provision that will be lost if the amendments go through. The noble Lord knows that at the moment, for ancillary leave proceedings, if an applicant fulfils the financial criteria and is given legal aid, any money that they receive over and above £2,500 can be recouped from them by the Legal Services Commission. If the person has money, £2,500 is the extent of the support that we as a country are minded to give litigants.

The noble Lord knows only too well that the longevity of the domestic violence issue far outlives a two-year period. Many women will never go to the police, to local authorities, to refuges or to their GP. They simply run. Sometimes they run to their families, and sometimes they do not even seek ancillary relief. However, those women and their children will still have to respond if the perpetrator brings ancillary relief proceedings against them, whether in relation to maintenance, residence or contact, and if that comes after the arbitrary two-year time limit, the perpetrator, who will often be the more financially advantaged, will have the wherewithal to bring those proceedings, and the victim and her children will have no legal aid to support them. That is why, unlike the noble Lord, Lord Pannick, I will insist that we look at this again. The other place gave cursory attention to these issues. If this is the only issue that will be returned to it, perhaps it will be able to consider it at greater leisure. If it does, perhaps the sagacity of this House will assist it to do a little better than it has to date.

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[Lord Mackay of Clashfern]

There is one question I would like to ask the noble and learned Baroness. I understand the point about time limits; I listened carefully to what was said about that. I tried to follow fully what she was saying and I think that, on the whole, I succeeded in doing that. However, she said—and I know that this can happen—that a woman subjected to domestic violence may do nothing about it at the time and then wants to bring it up, very properly, later on. I do not at the moment see where that situation is covered in her amendment. I can see the relevance of the time limit, but when the woman in question has not done anything about it at all—except suffered it, which is enough—I do not at the moment see that that situation is covered, unless it be of the type prescribed in regulations. That is an open-ended thing, but so far as the rest of it is concerned—having listened, I hope, carefully and understood fully, I think, what the noble and learned Baroness was saying—I have not quite grasped that particular point.

[Baroness Scotland of Asthal]

I hope that I can help the noble and learned Lord. On the last occasion on which I spoke, I said that I accepted that even my amendment would leave out many people who needed and should have help and assistance, and that I was not happy that even my amendment would go as far as it should, but I was drawing back from the ideal, accepting that the Government wanted a very narrow gateway. That is point number one.

Point number two is that if, in such a situation, the woman had available to her and could produce evidence that there had been a number of police calls to her home, notwithstanding the fact that she had not pursued it to the extent of asking for or supporting a charge and a conviction, then she would still have evidence available to her which she could rely upon, notwithstanding the fact that while the parties lived together she had not pursued it as she should have. One reality that we have had to face for a number of years is that, quite often, victims will hide from the perpetrator, as opposed to confronting him, but there are occasions when the perpetrator will find and pursue the victim and then the victim has no choice but to respond. It is in those sorts of cases that, if we do not give a greater degree of flexibility, we will find that there is difficulty. That woman might have not gone to the refuge, but she may have received telephone or other support from it indirectly. Therefore, part of our amendment is asking for not only admission to a refuge to be included, but also other evidence that could be given by the third sector or professionals to say that there was valid evidence upon which the woman would be able to rely to prove that there had been domestic violence.

[Baroness Hamwee]

My Lords, I hope that my noble friend, in responding to this, can help the House as to how extensive regulations can be to cover the concerns that have been expressed. I have spoken on many occasions over the years about domestic violence, and my response to a lot of what has been said, particularly comments made by the noble Baroness, Lady O’Loan, whom I respect enormously, is to think that we should be doing more with the services that we give to, mostly, women who find themselves in this situation. However, that is about services—refuges and other sorts of help—and it does not go to the evidence, so I hope that my noble friend can help expand on the answer that we have been given by the Commons: that regulations should deal with these matters.

--- Later in debate ---

[Lord McNally]

But isolating one aspect and saying that if a woman goes to a refuge and cannot get in she will not get legal aid ignores the fact that I have put before the House—the whole list of options that people can turn to. I do not think that it serves the case of women subject to domestic violence to somehow suggest that the passing of this Bill will cut them off from legal aid. The fact is that we will be spending something like £120 million a year in legal aid in this area of law. As I pointed out in my opening remarks, one thing that I am most proud of about this Government is that we have put funding into domestic violence issues in a very detailed way—in a way to which the noble Lord, Lord Blair, referred.

We are talking about a very specific area of assistance in a very specific area of law, with victims seeking legal aid for private family matters. With her skills, the noble and learned Baroness, Lady Scotland, has turned this into a debate again and again on who is in favour of helping domestic violence victims, and who is against. I think that is a clever way of putting it to the House, but it is not a fair way. We have tried and listened and moved on all these areas. Long ago, the request from the Opposition was for the ACPO definition; when the ACPO definition was conceded, it was the UK Border Agency that became the mark. The fact that we have done ACPO-plus does not seem to matter. The fact that we have brought in funding for specific aid in this area does not matter. We will always find there is another bar to clear, so that as noble Lords come in asking, “What’s this about?”, it can be said to them, “It’s about voting for legal aid for those affected by domestic violence”. But legal aid is there for those affected by domestic violence. The criteria by which they qualify have been widened. We have listened to this House and acted on its advice.

On the point raised by the noble Earl, Lord Listowel, about family legal aid in children and kinship, where private family law proceedings are being taken as an alternative to public law proceedings—for example, where it is more sensible for grandparents to care for a child rather than the parents—legal aid will be available. If there is evidence of child abuse, it will also be there. I will look at the further points the noble Earl made, and if I may I will write to him, but we believe that exceptional funding will also kick in in this area.

The noble and learned Baroness, Lady Scotland, is a powerful and sometimes an emotive advocate but it is sometimes worth cutting through the emotion, and I ask the House to do that—to cut through the threat that this will cause death—and look at the facts. The fact is that this Government have listened and extended the criteria for this form of legal aid beyond what the House first asked for. This Government have put real money into real, pioneering services in terms of this terrible scourge of domestic violence. The Commons has considered this, and was right to return it to your Lordships. I believe this is the moment to ask your Lordships to accept the view of the Commons. I beg to move.

[Baroness Scotland of Asthal]

My Lords, perhaps I might say to the Minister straight away that I hope it has been clear from everything I have said that I have always believed, and still believe, that all sides of this House—and, I hope, of the other place—are of one mind in the approach that they take towards helping domestic violence victims. Nothing I have said from this Dispatch Box has undermined that. What I have been clear about is that this Government have been wrong not to widen the gateway. With respect, we have consistently argued about the time limit and the evidential criteria, right the way through, and we have not changed.

I also say gently to the Minister that in looking at reducing litigation, the one happy thing about domestic proceedings—both in private family law and in relation to domestic violence cases specifically—is that family lawyers worth their salt always appreciate that if a family has got to the stage of having to litigate, they are dealing with damage limitation and not winning or losing. That is why only about 5 per cent of the cases ever go right the way through into contested matters, so in this area of law we are not looking at cases running away and people litigating when it is unnecessary. The Government are continuing the approach that the previous Government took in advocating mediation whenever it is proper.

However, we have a difference of view. I thank the noble Lord very much for his compliments about my advocacy, but I have to tell him that this is not about advocacy. This is about truth and fact, and if I do nothing else I will always stand side by side with the victims of abuse. I believe that is where the Government should be too.