Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Fiona Mactaggart and Jonathan Djanogly

Tuesday 17th April 2012 Commons Chamber

[Mr Djanogly]

Lords amendments 1 and 24 impinge on the financial privilege of this House. I ask the House to disagree to them and will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. Notwithstanding that, the House now has the opportunity to debate the substance and effect of the amendments, and shortly I will state the Government’s full reasons for rejecting them. Before I start, I remind the House of the statement that I made on Report on 31 October 2011 relating to my declaration of interests. It can be found at column 626 of Hansard, and I confirm today that it remains accurate. I ask the House to agree to the Government amendments in lieu of Lords amendments 3 and 4, which relate to the director of legal aid casework.

I turn to the Lords amendments. Access to justice is of fundamental importance to our legal system and to this Government, but our legal aid system is by any measure extremely expensive and sometimes prone to aggravating disputes unnecessarily by pushing them into the courtroom. The question for the Government has never been whether to reform it but how, and our approach is one with a principled basis of focusing scarce resources on the most urgent and serious cases while seeking a broader shift to earlier resolution of disputes. We have always been happy to accept amendments that deliver on those principles, so it should come as no surprise that the Bill is much revised. The Government have listened and made significant concessions, and I am grateful to the other place for its concern to improve the Bill.

In another place, Lords amendment 1, tabled by Lord Pannick, was said to identify the aims of the legal aid system in our society. It would place a duty on the Lord Chancellor, reflecting the provision in section 4(1) of the Access to Justice Act 1999, to secure within the resources made available and in accordance with part 1 of the Bill that individuals have access to legal services that meet their needs effectively. However, clause 1(1) already sets out a clear duty on the Lord Chancellor to ensure that legal aid is made available in accordance with part 1 of the Bill, so the Government are concerned that the amendment replicates what is already in place.

Worse than mere duplication, technical problems with the amendment risk muddying the waters, creating legal uncertainty and undermining the Bill’s clear purpose. Unlike the clear duty in clause 1(1), which relates to legal aid made available under part 1 of the Bill, with legal aid being defined in clause 1(2), Lords amendment 1 would impose a duty in relation to legal services. Despite the purported qualifications in the words in brackets, it can be read as imposing a wider duty on the Lord Chancellor than that intended under the Bill, in that it risks imposing a duty on him to fund legal services beyond the realm of legal aid provision.

We believe that there are potential additional costs attached to the amendment, which would create uncertainty. It runs contrary to the policy intention of creating certainty through the unambiguous description of services in schedule 1 and the clearly defined circumstances in which exceptional funding is available. Both the uncertainty that would be created and the possible costs are undesirable outcomes.

The problem with the amendment is that it conflates the two important but separate principles of access to justice and the provision of publicly funded legal advice. It could be understood in the context of the 1999 Act, which, because it was drafted on an exclusionary basis, specifies what services cannot be funded under civil legal aid but leaves rather vague exactly what the Lord Chancellor is responsible for funding. However, the Bill is carefully drafted on an inclusionary basis, which means that it is explicitly clear about what services can be funded, thereby representing Parliament’s view on services that should be provided under legal aid to meet people’s needs.

Lords amendment 1 risks providing the basis for myriad new legal challenges seeking to widen the scope of the Bill. The central purpose of our legal aid reforms is targeting resources where they really matter, not providing work for lawyers. We cannot accept an amendment that might prompt endless legal dispute and judicial review.

Lords amendments 3 and 4, which were tabled by Lord Pannick, and the Government’s Lords amendment 5 all concern the director of legal aid casework. Lords amendments 3 and 4 are born out of concern that the director’s decisions will be subject to political interference from Ministers. I reassure the House that the Government absolutely agree with Members of the other place that the Lord Chancellor should have absolutely no involvement in a decision about legal aid funding in an individual case. However, we ask the House to reject Lords amendments 3 and 4, because they would have the unwelcome effect of preventing the director from being appointed as a civil servant.

I must remind the House that we are abolishing the Legal Services Commission to improve the administration of legal aid, not to create greater fragmentation of responsibility and accountability.

Clause 4 provides protection to the director by creating, in clause 4(4), a statutory bar on the Lord Chancellor’s involvement in funding decisions by the director in individual cases. The Lord Chancellor may not give directions or guidance to the director about the carrying out of the director’s functions in relation to an individual case. In addition to that protection, the Bill imposes a duty on the Lord Chancellor to publish any guidance and directions that he issues to the director.

Lords amendment 5, which is a Government amendment, goes further by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. That annual report will be laid before Parliament and published. We consider that further offer of transparency to be an important safeguard.

I am aware that the question of directorial independence was one that exercised the other place considerably. It is because we agree that that is a vital issue that we are happy to put the matter beyond doubt. That is why I am asking the House to agree to the Government amendment in lieu of Lords amendments 3 and 4. That will reinforce the protections already set out in clause 4(4) by requiring the Lord Chancellor to ensure that the director acts independently of the Lord Chancellor when applying directions and guidance given under clause 4(3) in relation to an individual case. That provides additional assurance on the director’s independence without compromising common-sense administrative arrangements designed to improve control and accountability.

Finally, Lords amendment 24 concerns the provision of advice over the telephone, on which I am afraid I cannot agree with many of the sentiments of the other place. The effect of amendment 24 would be to weaken a key measure to modernise the system and bring it up to date. The aim of the telephone gateway is to route access to legal aid, in the first instance, by the phone. That is not only much more efficient, enabling calls to be properly triaged, but simpler to access and generally of higher quality.

[Fiona Mactaggart (Slough) (Lab)]

Has the Minister done any studies on the effectiveness of telephone advice lines for people whose first language is not English?

[Mr Djanogly]

We have, and if one were to call the telephone hotline, one would be able to speak in any of 170 different languages, which is more languages than one would find used in a high street solicitor’s office.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Fiona Mactaggart and Jonathan Djanogly

Monday 31st October 2011 Commons Chamber

[Mr Djanogly]

I look forward to the hon. Lady providing her reasons why that should be the case.

The right hon. Member for Dwyfor Meirionnydd made a significant number of points for his significant number of amendments, most of which I covered in my preliminary remarks, and I do not intend to go over them all again. However, he mentioned two particular points that I did not cover, so if he does not mind I will concentrate on those.

It is not clear that amendments 92 or 93 would widen the category of services described in paragraph 10 significantly or at all. The definition of abuse used in the Bill is intentionally broad and not limited to physical violence, but it embraces physical or mental abuse. Abuse is stated to include sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation, but it is not limited to those examples. Therefore, we believe that it is sufficiently flexible to cover cases of genuine abuse, as is the intention. Both amendments refer to physical and mental abuse, which are already explicitly referred to in the Bill’s definition. Additionally, they refer to threatening behaviour, violence and emotional abuse, which are clearly within the scope of physical and mental abuse and so are unnecessary and add nothing to the breadth of the category.

Further reference is made to financial abuse. It is not entirely clear what that would cover outside the context of serious cases where the treatment of one party by the other in relation to the family finances amounts to physical or, in particular, mental abuse, which would include neglect, maltreatment and exploitation in the Bill’s definition, where it is clearly within the definition of abuse in the Bill. Where the financial abuse does not amount to or form part of physical or mental abuse, it could be argued that the amendment would widen the gateway beyond what might be ordinarily understood as abusive behaviour, but in a way where the effect is unclear. For instance, there is no special reference to financial abuse in the provisions of the Family Law Act 1996 to protect against domestic violence or in case law, in contrast to emotional or psychological abuse, so it is questionable what it would add in this regard.

However, the amendment also stipulates that any incident of abuse would suffice to come within the category. On one construction, that would make no difference since the existing definition does not require a course of conduct, but on another construction it might be argued that the explicit reference to any incident could be read as a fetter on the power to define what would be accepted as sufficient evidence of abuse through secondary legislation. That is because the type of evidence acceptable will reflect a certain degree of seriousness. For instance, a family court will not generally make orders relating to minor, one-off incidents, although it will do so in appropriate circumstances, such as a course of conduct of trivial incidents adding up to something more serious.

It is not clear that any challenge to secondary legislation requiring forms of evidence that in themselves are unlikely to arise from minor, single incidents would have any prospect of success, but the risk cannot be entirely ruled out. Were it impossible to prescribe the forms of evidence proposed to date, we estimate that the consequent opening up of eligibility would at the very least double the cost of the domestic violence gateway to £130 million per annum.

The part of amendment 23 that refers to violence or abuse

“between adults who are or have been intimate partners or family members, regardless of gender or sexuality”

is superfluous, since it duplicates the effect of paragraph 10(7), which sets out that for the purposes of the paragraph there is a family relationship between two people if they are associated with each other. That “associated” has the same meaning as set out in part 4 of the 1996 Act, where it is defined very widely and covers a range of relationships no less wide, and in some instances wider, than the ACPO definition.

Amendment 93 would widen the domestic violence gateway so that legal aid would be available for the potential victim in private family law cases where there has been an as yet unproven allegation of abuse, or of the risk of abuse. It would make the gateway extremely wide and, in effect, would mean that self-reporting would have to be accepted as sufficient evidence of domestic violence, making any other evidentiary requirements redundant. It would be difficult to limit very far the forms of evidence of an allegation of abuse, or of the risk of abuse, that would be accepted. We estimate that that would at the very least double the cost of the domestic violence gateway to £130 million per annum.

The amendment refers to allegations that person B has been abused by person A. In paragraph 10 of schedule 1, it is person A who is the victim, and person B who is the abuser—the other way around. However, the amendment does not change the opening proposition, which is that the services are provided to person A. This appears to have the perverse consequence that if the proven abuser, person B, alleges that the proven victim, person A, was the abuser, person A would qualify more easily for legal aid as they would then have to give as evidence only an allegation by person B of abuse or the risk of abuse. That is almost certainly a drafting error, but if it is not, and the intention is instead to ensure that legal aid would be available where either party might be the victim of abuse, that would be unnecessary.

In relation to amendment 97, the intended effect is unnecessary because section 37 proceedings are public law matters and it would be possible, in private law proceedings, for a court that is considering a section 37 order to adjourn so that the parents, if they are not already represented, may have access to legal aid and representation under the public law heading. The actual effect is rather wider. However, the amendment would bring the whole of family proceedings, such as proceedings for residence and contact with children, into scope where the court considers making a section 37 direction, rather than simply consideration of that point. Again, this may be a matter of defective drafting, but if so the entire amendment would be superfluous.

The right hon. Gentleman also asked whether an adjournment would introduce a delay in protecting a child. We would expect a court to adjourn a hearing only if it considered it safe to do so. The only way to avoid the potential of being a section 37 direction being made at a hearing involving unrepresented parents would be by providing legal aid for all private law children cases, which we believe would be a disproportionate response. There is already the potential for section 37 directions to be made in cases involving litigants in person under the present system, but as I have said, legal aid is available and will be in future to challenge such a direction.

A significant number of comments were made in relation to amendment 74. The hon. Member for Hammersmith (Mr Slaughter) indicated that he will want to press it to a Division, so I will spend some time on it. I agree that it is an important matter. He said that he understands our intent. Does he understand that we need to have savings in legal aid? I am not sure what he meant when he said that he understands our intent—[Interruption.] He says that he will address that in a later debate, but I think that it is quite an important issue. In contrast to what he said, his right hon. Friend the shadow Secretary of State recognised in an article published only this morning that

“cuts need to be made”.

Looking at the amendments tabled by Opposition Members, I cannot see where those cuts will be made. We have had a little look at what they are proposing. The estimated costs of the Opposition amendments are: £20 million in debt matters, £5 million in employment matters, £15 million in housing matters, £25 million in welfare benefits matters, £10 million in clinical negligence matters and £170 million in family law matters. The total is £245 million. The taxpayer deserves to know where the money for that will come from.

Let me address the actual effect of amendment 74. To set out in the Bill the circumstances as specified in the amendment that should be accepted as evidence of domestic violence for the purposes of legal aid for the victim in a private family law case would mean that those circumstances, but not those that the Government intend to accept as evidence of domestic violence, would be set out in primary legislation. The Government would therefore have no power at all to amend those circumstances through secondary legislation. They would be in addition to any circumstances set out in secondary legislation for providing appropriate evidence of abuse. We expect that significantly more cases would receive funding if the circumstances set out in either amendment were accepted as evidence. The hon. Member for Edinburgh East (Sheila Gilmore) and others mentioned their concern about the issue of incentives for false allegations of domestic violence, but we received a significant number of responses to the consultation that expressed concern that there might be a rise in unfounded allegations of domestic violence, and the respondents expressing such concerns included the Law Society and the Bar Council.

[Fiona Mactaggart]

The hon. Gentleman is concerned that there might be a rise in unfounded allegations of domestic violence, but does he accept that if his proposals go through there will be an increase in the number of women who are victims of domestic violence and unable to access legal aid?

[Mr Djanogly]

No. Our proposals are aimed at ensuring that those who are subjected to domestic violence are kept within the scope of legal aid.

Many hon. Members have said, “Shouldn’t any incident of abuse trigger legal aid?” Some have said that we should limit it, and the hon. Member for Hammersmith has put in certain but, given his amendment, not very many limitations. The hon. Member for Edinburgh East accused me of being obsessed with false claims. I am not, but we need to appreciate that such a provision would have serious financial consequences, as it would lead to funding in cases in which the abusive behaviour, although unacceptable, might be very marginal.

Clearly, a single incident of abuse can be very serious, but a single one-off incident of non-physical abuse, such as angry and upsetting words spoken during an argument, can be relatively minor, because they have no real effect on the victim’s ultimate ability to face the other party in proceedings.

On amendment 74, specifically, my hon. Friend the Member for South Swindon, my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) and my hon. Friends the Members for Ipswich and for Maidstone and The Weald (Mrs Grant) asked whether we would accept undertakings given in civil proceedings as evidence of domestic violence, and I will look at that issue further. The Government’s current position is that a person can give an undertaking, for instance not to be violent towards family members, without admitting to domestic violence, meaning that undertakings may be given in cases where domestic violence has not taken place. We do not think that undertakings would provide sufficiently clear objective evidence that domestic violence has occurred, but we shall look into that further.

My hon. Friend the Member for Maidstone and The Weald also asked whether the fact that the definition of abuse is not specific will make its use more difficult in court, but the definition in the Bill will not be used in proceedings for domestic violence orders under the Family Law Act 1996. There is no definition at all of domestic violence in the 1996 Act, but the courts have experienced no difficulties, so neither the Bill’s definition nor the ACPO definition will be used in such proceedings.

The hon. Member for Hammersmith discussed a finding of fact in a family law court, and he asked how people would get legal aid in that context. They will not get legal aid to bring the case, as legal aid will be triggered only when the court has made a finding of fact, but an applicant will be able to submit written evidence of any abuse if relevant to proceedings, and a judge will be able to intervene to prevent inappropriate questioning.

Several hon. Members, including the hon. Gentleman, made a series of points about the specifics of amendment 74, so let me deal with those, including what would be accepted from various people as evidence in order to qualify for domestic violence. Accepting police cautions would be inconsistent with our proposal to include in the criteria “criminal convictions unless that conviction is spent”, as simple cautions are not convictions and become spent immediately.

A harassment warning is notice that a complaint has been received by the police; it is not considered to be proof that an offence has occurred, and police are not obliged to investigate the allegation. We therefore do not consider that harassment warnings would provide sufficiently clear objective evidence that domestic violence has occurred.