Civil Legal Aid (Procedure) Regulations 2012

Lord McNally Excerpts

Wednesday 27th March 2013 Lords Chamber

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, when the noble and learned Baroness, Lady Scotland, sat down, having made her usual very powerful indictment, there was a growl of approval because across the House there is an abhorrence of domestic violence and a desire to help the vulnerable, particularly the disabled. However, I ask the House not to take that sympathy into an assumption that all this is being put at risk by a callous and uncaring Government. As I pointed out before, the legal aid bill will still be running at something like £1.7 billion when all this is over, and criminal legal aid is now at just over £1 billion. However, I will not start quibbling over figures with the noble Lord, Lord Bach, as he demonstrated his command of figures earlier in his speech.

I contest, and worry about the impression that will be given because of strong campaigning, that legal aid is somehow removed from these areas. I will try to deal with the points that were made by the noble and learned Baroness Lady Scotland and the noble Baroness, Lady Grey-Thompson. I will also address the points made by the noble Lord, Lord Beecham, which were made with his usual quiet courtesy. The point that I made about remoteness, which is a cold, hostile kind of word, is that we underestimate what new technologies can do to help with access to justice. That is the point I was making. On the point he made about mediation, I certainly am not overclaiming for it. Mediation is certainly not a cure-all. However, I thought that he threw in one very interesting statistic: only 5% of family law cases are contested. That is worth keeping in mind.

On the points made by the new president of the Family Division, I have been in this job long enough to give due deference to the separation of powers and the opinions of the judiciary. Of course, he is right to be very concerned, but I am not sure that the term “desperately unprepared” is fair. I know the amount of effort that has gone in, in my department, to make sure that these changes can be introduced as effectively as possible and that the help we want to give is given to the people who need it.

I will deal first with the points made by the noble and learned Baroness, Lady Scotland. Perhaps I should clarify, for the benefit of readers of Hansard, that perhaps my opening remarks should not have been made and we should have gone straight to the noble Baroness, Lady Grey-Thompson. So my reply came at the beginning of the debate. My plea is that I have been in the House for only 15 years and am still getting used to some of its more arcane procedures. Although my reply was all-encompassing, it probably did not address some of the specific issues that were addressed by the noble Baroness, and by the noble and learned Baroness. Therefore, I will do that now.

Because the noble and learned Baroness, Lady Scotland, deploys such ferocious talents in making a case against what the Government are doing, I worry that she will lead vulnerable women affected by domestic violence into the fear that somehow legal aid will not be available. I am sure that that is not her intention, but it could happen. I will point out that in the regulations that have been published there are 10 separate, distinct qualifications for legal aid. I will not trouble the House by reading them all. They are very precise, and it is simply not true to say that women who are subject to domestic violence will not be able to get legal aid. They will be covered by a wide range of qualifications for entry through the gateway. We should let the system start.

In answer to the point made by the noble Lord, Lord Beecham, and others, we will monitor the impact from day one.

[Baroness Corston]

My Lords, is the Minister suggesting that my noble and learned friend Lady Scotland is either scaremongering or not telling the truth?

[Lord McNally]

The noble Baroness is putting words into my mouth. When you start talking about death and saying that people will die because of this, it raises the temperature. The noble and learned Baroness is entitled to make her point—and I certainly would not like her to prosecute me. However, there is a case for the defence and I will try to make it. Part of the case is that the regulations we have set down have 10 specific areas that will qualify women for help in domestic violence cases.

In making her case, some of the figures that the noble and learned Baroness gave went beyond the issue of providing legal aid in family law cases to the much wider problem, which we all acknowledge, of domestic violence and violence against women in our society. It is unfair to use the figures and statistics for domestic violence in general to imply that in the specific and narrow area of legal aid in family law cases there is not a wide range of provisions. I refer the House to the Civil Legal Aid (Procedure) Regulations 2012. For the benefit of the House, perhaps I can write to the noble and learned Baroness and put a copy in the Library, setting out the various qualifications for access to legal aid in domestic violence cases that there will be under our reforms.

Both the noble and learned Baroness, Lady Scotland, and the noble Lord, Lord Beecham, raised the question of a possible £60 charge. We have been in negotiation with the professional organisations. As was rightly said, the BMA has raised questions. However, we are asking applicants to provide a simple, standard template letter from a doctor or a nurse—not a medical report—and we see no reason why the charge for a letter from a GP should be more than a simple administration fee. We have arranged for communications to go out from the Royal College of General Practitioners, emphasising that GPs should respond as rapidly as they can and be as sensitive as possible to the needs of applicants. I invite the BMA to give similar guidance as part of its contribution to dealing with these issues.

The case cited by the noble and learned Baroness, Lady Scotland, was certainly harrowing. It is impossible for me at the Dispatch Box to deal with this kind of case. From what she described, I would be surprised if, even under our reforms, there would not be access to legal aid, including a protective injunction that could be applied for in the circumstances that she described. On the question of evidence requirements, we will keep them under review and would welcome evidence of how they are operating.

The noble and learned Baroness raised the issue of simultaneous orders, and whether one could apply for separate orders at the same time. It is possible to combine such proceedings. However, the funding may not be available for the entirety of the proceedings. Funding is available for non-molestation order applications, but in order to receive funding for a matter falling within paragraphs 12 or 13 of Part 1 of Schedule 1 to the Act, the applicant would need domestic violence evidence. I gather from the briefing that I asked for that the noble and learned Baroness may be right: there may have to be two trips. Certainly we will look at whether that will add costs and time to the process.

Are we putting training in place? The Department of Health has worked with the Royal College of GPs to develop an innovative e-learning course on violence against women and children. The course was launched in Liverpool in October 2011. It consists of four modules that aim to help clinicians provide an appropriate healthcare response to domestic violence. There is a similar training for police to spot evidence and act on it.

On the point about cross-examination, judges have certain powers to address the situation, including special measures if necessary: for example, by intervening to prevent inappropriate questioning or by having questions relayed to the witness rather than put directly. The noble and learned Baroness asked about access, and whether there would be an identifiable person co-ordinating complaints of domestic violence in each area. The answer is yes. The guidance provides for links to be provided to the relevant multiagency risk assessment conference, which will be chaired by someone who will take direct responsibility in that area.

The noble and learned Baroness, Lady Scotland, mentioned the problem of women’s refuges being full. It is right that, at the moment, that cannot be used as evidence, but I should like to take that back as part of the early review. She also made the specific request about equivalence in cross-undertakings. There is no provision that cross-undertakings must be of equivalence. However, the cross-undertaking must be given under Section 46 of the Family Law Act 1996. Where it is a general form of cross-undertaking, which is not made under Section 46, but, for example, to aid the smooth running of proceedings, it would not count as a cross-undertaking, but there would have to be equivalence in the cross-undertaking. I hope that that makes it clear.

--- Later in debate ---

[Lord Beecham]

My suggestion was that a freephone system might be adopted. Have the Government considered that; if so, will they consider it again?

[Lord McNally]

The noble Lord is quite right: the number will not be a freephone number. I will inquire whether that was considered. The point is that it is minimalist. Just to put it on the record, you can use the 0845 3454345 number and immediately ask for a call-back, so it is not that big a hurdle.

I have taken a lot of the time of the House. I have tried to answer some important questions. I hope that, in doing so, I have conveyed that we are dealing with issues of shared concern about protecting the most vulnerable in our society.

Throughout both these debates today, we were faced with making tough financial decisions, but I believe we have made them in a way that targets resources at the most vulnerable in the way that would be most effective. I would regret it if the Motions were pressed. I will note the opinion of the House, but I go back to the growl of approval that greeted the noble and learned Baroness, Lady Scotland. It is an approval that I share: we have got to make sure that in our approach to legal aid and the broader issues that encompass both, our aim must be to give priority to attacks on the broader causes of domestic violence and to ensure that there is legal aid available in family law. I believe that if noble Lords look at the way that women will qualify for legal aid, it will be very difficult to say that those provisions are not there.

On aid for issues of disability, I hope I have clarified some of the concerns of the noble Baroness, Lady Grey-Thompson. I hope she will go to Hinckley and see the gateway in progress. I can assure all sides of the House that as far as I am concerned, monitoring will start on day one to see what the impact of these changes will be. In that respect, I hope the noble Baroness and the noble and learned Baroness will not press their Motions.

[Baroness Grey-Thompson]

My Lords, I thank the Minister for his introduction and his response, which were, perhaps, wrapped up together. I thank the organisations that provided me with some amazing case studies and the individuals who have been in touch and explained the immense difficulties that they are currently facing.

In thinking about bringing this Regret Motion, I was fortunate to speak to my noble friend Lady Campbell, who is in her place, who shared some of her experiences of the Disability Rights Commission. It operates a telephone advice line and has perhaps some of the most highly trained people in disability and equity, and they experience difficulties in understanding people with speech difficulties, perhaps because they have cerebral palsy, or with multiple impairments, who speak in a different way. She was able to outline some of their difficulties in being able to clarify their issues. A number of solicitors I spoke to said that people do not present their problems in an easy-to-understand manner. Mind, the charity, which has been part of this discussion, said that it is exceptionally worried that many people with fluctuating capacity could be excluded. A number of organisations have communicated their fear about people being able to access the telephone gateway.

I am a huge fan of technology. It is amazing, it is great if you can afford it, and it is even better if you know how to use it. Young people seem to be born with an ability to make it work, but that is not the case for perhaps many of us. If I look around your Lordships’ Chamber, we have, if I can say it, some of the most privileged people and the brightest, and those with access to the best education, knowledge and experience, but I wonder how many of us use technology. Think about it if you are a disabled person, if you are alone, isolated, going through great difficulty and with immense problems that you are trying to explain to someone else. We have a very long road to enable disabled people and old people to access some of this.

I am very passionate about special educational needs because I went through it. I fought to get into mainstream school before there was a system in place. My father used a single line in the report by the noble Baroness, Lady Warnock. He threatened to sue the Secretary of State for Wales over my right to be educated in a mainstream environment. He was educated and financially privileged. I look round at many of the people who will be fighting for the same thing for their children, and picking up a phone and trying to explain their children’s complex needs does not make any sense to me whatever. I know the noble Lord, Lord Freud, and the Minister have both said, in relation to disabled people, that the Government want to help and support those with the greatest need. I do not believe that that is the case.

The Minister also talked about reasonable adjustments. That is all very well, but it does not measure those who do not or cannot make the first phone call. The fact that the phone number is not free will make it exceptionally difficult for a number of people who do not have credit on their phones and who just cannot even contemplate picking up the phone. I am afraid that I am completely unconvinced by the idea of the third party and the Minister’s faith in that working. I find trying to explain complex needs to somebody who will then explain them to somebody on the phone very frustrating and disappointing.

I still believe that the exemption group is too narrow and that disabled people will increasingly be hidden away. In 2013, disabled people will start becoming invisible as they did in the 1960s and the 1970s when I was young. That is a cost I do not think is worth paying. I wish to test the opinion of the House.