Legal Aid, Sentencing and Punishment of Offenders Bill

Caroline Lucas Excerpts

Monday 31st October 2011 Commons Chamber

[Mr Djanogly]

I really must make some headway. If the right hon. Lady will give me a few minutes, I might allow her to intervene again.

We will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, as with a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. We will still spend an estimated £120 million a year on private family law, including on domestic violence, after our proposed changes. This includes funding for about a quarter of the private family law cases that currently receive legal aid to go to court. We expect to continue to fund them where domestic violence or child abuse results from those cases.

Amendments 92 and 23 would put parts of the definition of domestic violence used by the Association of Chief Police Officers on the face of the Bill in paragraph 10 of schedule 1 in place of the existing definition of abuse. Identical amendments were debated in Committee. The existing definition of abuse used in the Bill is a broad and comprehensive one, explicitly not limited to physical violence. It is used elsewhere in paragraph 3 of schedule 1, which provides for legal aid to be available in relation to 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. Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others—lest confusion should result.

[Caroline Lucas (Brighton, Pavilion) (Green)]

Will the Minister explain why a different definition is being used here from that used in other Home Office and Ministry of Justice documents? A lot of concern has arisen among women’s organisations that there is an agenda here; we would love to know what that agenda is.

[Mr Djanogly]

If the hon. Lady will allow me to get on, I will clarify precisely that.

The definition should also be seen in the light of the Bill’s structure and the purpose of the paragraph in which it appears. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subjected to domestic violence by the other party and is likely to be intimidated or otherwise disadvantaged in presenting his or her case should, as a result, be able to have access to legal aid. It does not provide that any individual who has been the subject of, or who is at risk of being the subject of, abuse as defined in that paragraph will qualify regardless of what evidence of abuse might exist. Not every such individual will be intimidated or otherwise disadvantaged in the way the paragraph is intended to address. It establishes a description of legal services and whether an individual qualifies for those services in any specific case. It requires that an individual not only falls within the category in paragraph 10, but meets the criteria to be established in regulations made under clause 10.

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[Mr Llwyd]

Yes, and I wonder about the quality of the evidence coming out of that flawed process.

I was assisted in drafting amendment 93 by the Bar Council, which has said that the effect of preventing such distressing and costly consequences is worth looking into urgently. Amendments 94 to 102 relate to proceedings involving children’s welfare. As the Bar Council has said:

“It is not understood why, under Schedule 1, the provision of legal aid is limited to proceedings relating to the children, and not the associated financial remedy proceedings. The child’s economic welfare is important in abuse cases; particularly given the higher incidence of abuse in low-income households.”

Amendments 96, 97 and 98

“would have the effect of bringing within scope…proceedings leading to an order under the Children Act 1989 section 37…and…all subsequent steps in family proceedings once a section 37 order has been made. They would also ensure…that…the person against whom allegations of abuse are made is within scope.”

Amendments 94 and 95 are consequential amendments.

The Minister said in Committee that cases involving financial provision are not a priority for legal aid. I firmly believe that all private family cases should be retained within the scope of legal aid. It is difficult to overestimate the damaging effects on children caught up in untidy, bitter and lengthy disputes. Protecting the interests of children is at the heart of amendments 99 to 102. As the Bar Council has said:

“Paragraph 13 provides for the provision of legal aid for the child parties in cases which come under subsection (1)(a)-(e), but not for the adult parties,”

which, as I have said, will

“result in unrepresented adults being forced to cross-examine expert witnesses and, in many instances, the child concerned.”

Amendments 99 to 102 would have the effect of

“bringing within scope the provision of legal aid for adult parties in such cases.”

I want to talk briefly about amendment 83, my final amendment, which deals with judicial review. I thank the Immigration Law Practitioners Association for its help in briefing me on this amendment. We know that immigration-specific exclusions have been made. In their Green Paper, the Government set out a robust defence of judicial review and the need for retaining legal aid in such cases, saying:

“In our view, proceedings where the litigant is seeking to hold the state to account by judicial review are important, because these cases are the means by which individual citizens can seek to check the exercise of executive power by appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring that state power is exercised responsibly.”

None the less, the Government have compromised their position in immigration cases. My amendment 83 seeks to rectify that anomaly. In explaining why immigration cases are to be exempted from legal aid for judicial review claims, the Government say that they have drawn on the response to the Green Paper by the senior judiciary, who raised concerns about unmeritorious judicial reviews, but in so doing the Government have ignored three key aspects of the judiciary’s proposals.

First, the judiciary’s proposals were advanced only on the basis that

“careful further consideration would need to be given”

before the proposals that the Minister is now pushing could be taken up. However, no consultation has been held on those proposals. What is more, the judiciary also advanced their proposals on the basis that, in principle, legal aid should be available for appeals before the first-tier tribunal. However, the Bill removes legal aid in such non-asylum appeals. Finally, the proposals were advanced on the basis that legal aid should not generally be excluded, but instead be available where a positive decision was made in favour of granting legal aid in any individual case—for example, because the judge decided that it had merit. However, the Bill removes legal aid for such immigration cases, regardless of the merit of any individual case. All in all, this is a sorry state of affairs.

The Government seek to justify the new exclusions for judicial review in immigration cases by stating that public funding is not merited in cases that have

“already had…one full oral hearing,”

yet the provisions exclude legal aid even where there has been no oral hearing. The Government have effectively reversed their position that holding the state to account was of especial importance—hence the need to retain legal aid for judicial review. As a consequence, legal aid will not be available to hold the state to account at any stage, because immigration applications and appeals are also being removed from the scope of legal aid—a Catch-22 situation, or perhaps “Kafkaesque” would be a better description.

To remind ourselves, the changes will affect cases involving non-asylum claimants who face removal from the UK, and therefore from their families, homes and communities. Such claimants include trafficking victims receiving rehabilitative care and treatment; British children and spouses facing permanent separation from their parents or partners; children who have lived in the UK for many years—sometimes all their lives—facing removal to countries that they have never seen and do not know, and where they do not speak the language; adults who have lived in the UK for many years, and sometimes decades, facing removal to countries that they do not know; and victims of torture and other trauma who are no longer at risk of persecution in their home countries, but who are reliant on professional care and treatment.

The position now advanced by the Government is not supported by their stated principles or by the position advanced by the senior judiciary, and would leave a powerful agency of the state—the UK Border Agency—free from effective judicial oversight when exercising powers to remove people from their families, homes and communities, including where doing so will harm their welfare, health or life prospects. For those reasons, sub-paragraphs (5), (6) and (7) of paragraph 17 of schedule 1 have no place in any legislation with any regard for human rights or humanitarian issues.

[Caroline Lucas]

I rise to speak to my amendments 23 and 113. I shall be brief, because we have much business to get through, but let me say at the outset that I support Labour’s amendment 74. However, I still want to speak to my amendment 23, because I am yet to hear anything from the Government to explain why there is such resistance to ensuring that the definition of “domestic violence” set out in the Bill reflects the working definition currently used across Departments, including the Home Office and the Ministry of Justice, and by the UK Border Agency.

In a debate earlier this month, the Minister for Equalities assured me that the Government had

“not sought to change the accepted definition of domestic violence. We are including all forms of domestic violence, physical and mental, in legal aid criteria.”—[Official Report, 12 October 2011; Vol. 533, c. 136WH.]

That commitment is incredibly important to thousands of women in my constituency who have experienced physical and emotional violence, as well as those who have suffered sexual violence, and to all women across the country who desperately need legal aid to try to protect themselves from domestic violence. However, I fail to understand why, having made that commitment, the Government are using a definition of abuse in the Bill that departs from the current, widely accepted definition. My fear—and that of many campaigners working on the issue, including the women’s institute, Rights of Women and Gingerbread—is that using a different definition will weaken protection for women and result in legal aid being unjustly denied in some domestic violence cases.

In the debate on 12 October, the Minister for Equalities pledged to continue to support the robust cross-departmental approach to tackling violence against women and girls—a position also detailed in the Government’s strategy, published last year. However, surely having the same definition of “domestic violence” in use in all relevant legislation and across all Departments is the cornerstone of a joined-up approach. Problems can arise for women if a robust cross-departmental definition is not adopted. For example, in the case of Yemshaw v. London borough of Hounslow, the local authority refused to recognise Ms Yemshaw as homeless as a result of domestic violence, because, although she had been subject to emotional, psychological and financial abuse by her husband, she had not experienced physical abuse. Not until the case reached the Supreme Court was Ms Yemshaw recognised to have experienced domestic violence and thus deemed to be eligible for housing assistance. I appreciate that the definition in the Bill addresses mental abuse, but the key point is consistency. Responding effectively to domestic violence relies on clarity, uniformity and consistency. There is a perfectly good definition already in widespread use, so let us include it in the Bill. If not, may we please have a much more rigorous response from the Government about why not?

Let me say a few words about amendment 113, the purpose of which is comprehensively to preserve legal aid in immigration cases for a person subject to domestic violence. It is also designed to highlight the inadequacy of Government amendment 59, which fails to provide legal aid for a specific group of individuals, namely those subjected to domestic abuse whose immigration status is dependent on their partner, where they have not been granted limited leave to remain for a probationary period at the end of which they may apply for indefinite leave to remain.

In July, the Minister undertook to bring forward a Government amendment that would bring immigration cases involving domestic violence within the scope of clause 10. Of course that is welcome, as was the Minister’s undertaking to consider the first part of my amendment 113, which he made when he got up to speak quite some time ago. What I would love to know from him is exactly when and how he is going to consider it. We are now in the last few days of debate on this really important Bill. At this stage, for Ministers to say that they are going to consider provisions in some unspecified way is simply not sufficiently reassuring.

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[Glenda Jackson (Hampstead and Kilburn) (Lab)]

There is another element in the situation to which the hon. Lady refers. Indeed, I have more than one constituency case where the individual being abused comes, as members of their family have told me, from a culture where such attacks are never reported to the police and these women are expected to suffer in silence. In many instances, these are elderly women.

[Caroline Lucas]

I thank the hon. Lady for her intervention, which raised a really important point. It underlines the fact that we need from the Government a fuller explanation of exactly how they are going to consider the first half of amendment 113.

Let me finish by saying that the people I have particularly in mind are victims of domestic abuse who are not necessarily probationary partners. They might be a partner of someone with limited leave or of a person exercising European free movement rights. Although they do not fall within the domestic violence immigration rule, they might well face the very same problems as those who do. I look forward to hearing more from the Minister about how he intends to take forward the concerns raised in amendment 113 and that have been mentioned by other Opposition Members tonight. I very much hope that he can offer some serious reassurance for the future.

[Kate Green]

I speak in support of amendment 74 and endorse many of the comments made by the hon. Member for Brighton, Pavilion (Caroline Lucas) about her amendments. I shall add a couple of points about the definition of domestic violence and abuse and say a little more about the appropriate role of mediation.

We are all at a loss to understand exactly what distinction the Minister is drawing between the definition given by the Association of Chief Police Officers and the definition in the Bill. He variously says that there are differences and that different standards are required in cases where an investigation is taking place rather than action in court. Then he says that there is not much difference and he described the definitions earlier as broadly similar. Frankly, I think this definition is simply all over the place. That matters significantly, because it will put extra uncertainty and pressure on victims of domestic violence and abuse at precisely the time when they do not need to be uncertain. They have become brave enough to speak up and pursue their case, but it is not clear whether they will be covered by the scope of legal aid.

I am particularly concerned that the Minister seems to be putting in an extra hurdle for women who are victims of domestic violence but who are nevertheless able to make a case that they should be in receipt of legal aid. They can make an application saying that theirs is an exceptional case. They will presumably have to go to the new decision-making authority set up in the Bill, but we have no understanding of how that will be done, how much delay it might cause or what sort of evidence will be required to get access to exceptional funding to bring a case. All that is left unclear and simply adds further pressure and difficulty for victims of domestic abuse.

Amendment 74 is designed to be more precise about some of the evidential factors that should be considered. I would like to respond to the important point raised by the hon. Member for Ipswich (Ben Gummer) when he asked my hon. Friend the Member for Hammersmith (Mr Slaughter) whether it would be helpful to have some sort of national register of agencies, from which such evidence could be received. I am sure that that will not be of any great attraction to the Minister, but the UK Border Agency is already well placed to accept evidence from such voluntary sector and third sector agencies. That provides a model that could apply here.