Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Phillips of Sudbury Excerpts

Monday 5th March 2012 Lords Chamber

I hope that my noble friend will be able to accept our amendments, which are stronger in some ways than that of the noble and learned Baroness, Lady Scotland, and perhaps covering a wider area than she does in her group of circumstances.

[Lord Phillips of Sudbury]

I am sure that I am not the only one who wonders about the point eloquently made by the noble and learned Baroness, Lady Butler-Sloss, about informal undertakings given in magistrates’ courts, for example. Can I presume that that is covered in heading (iv) of his Amendment 39?

[Lord Thomas of Gresford]

Yes, that is certainly the case.

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[Baroness Farrington of Ribbleton]

My Lords, I had not intended to speak in this debate but was moved to do so by not only my noble and learned friend Lady Scotland but the reference made by the noble and learned Baroness, Lady Butler-Sloss, to the danger to children. Far too many women struggle to keep children in the family home in the teeth of abuse that can be very severe. The impact on the lives of those children tragically often continues to a stage where they become abusers because they have been kept in a situation where violence is seen by them as the norm.

My second point goes back to the early 1970s. I want to speak about false claims, reconciliation and the 12-month limit. I remember being approached by the wife of a Conservative councillor when we were trying to raise funds for a hostel for women and children who were the victims of domestic violence. This woman said, “You’ve got to keep on fighting. My daughter is the victim of abuse. My husband will oppose you in trying to get provision because he says her husband cannot possibly be abusing her because he is a barrister”. The daughter was a woman who had been forbidden to work, had no money, and was a victim of violence. Fortunately, her mother believed her but her father absolutely refused to do so. His only argument was, “Try for reconciliation so that you can see what a good husband you’ve got”.

I cannot understand the Government’s position in the light of experience being brought forward not only by those who work with women and men who are the victims of domestic violence but the UKBA and ACPO. This really is an amazing refusal to listen to the experience of those who work in this field, day after day. I hope that the Minister will be able to say that he will take this matter away. As the right reverend Prelate said, and as I say—drawing on my memory of that young woman who went back to be even more severely attacked—you cannot draw the line so tightly. This is not an area where you can say, “Twelve months and no more”. You have to have a flexible approach, and I look forward to the Minister saying, in answer to the question of my noble friend Lady Gould, what factual evidence there is that this matter relates to false evidence and false allegations. We can find no justification for that position.

I suggest to the noble and learned Lord, Lord Scott, who asked about financial deprivation, that he contacts some of those who I mentioned. It is not a question of spending money that should not be spent on the household, but of people who are victims to the point where they do not have the bus fare to find somewhere to get advice and help. This is a group of people who do not need to have their rights restricted and they look to us to ensure that they are protected.

[Lord Phillips of Sudbury]

My Lords, I commend the point made by the noble and learned Lord, Lord Scott of Foscote. It seems to me that the notion of financial abuse in the context of the amendments is rather bizarre. It is interesting that the government amendment contains that word. I thank my noble friend the Minister for having tabled an amendment which goes a very long way to meet the proper concerns of those who have sponsored the amendments. I also commend to my noble friend the point made by my noble friend Lord Thomas of Gresford about the importance of presumption being the consequence of any indication in the categories mentioned in his amendment, because that seems to me to give greater strength and practicality of operation. I merely make those two points in support of the general tenor of this group of amendments.

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[Baroness Mallalieu]

My Lords, I support both this amendment and the amendment that the Government have tabled. For reasons that have already been given, it is crucial that the figure who is the director should not be political in any way and should not, in so far as it is humanly possible, be susceptible to political pressure. That is not only because he will be dealing, as has just been said, with cases that may have political undertones but also because—and I say this as a clinical practitioner—there may very well be a serious crisis in criminal legal aid in the not too distant future which may have repercussions that go far beyond individual cases. It may be necessary that whoever is in the role of the director is prepared to stand up to pressures that might be placed on him in relation to the funds that are available. It is important that he should report, and I welcome that amendment, but that does not go quite far enough. The amendment in the name of my noble friend Lord Hart and others does.

[Lord Phillips of Sudbury]

My Lords, I concur with everything that has been said. As time goes by the role of the director is liable to get more rather than less sensitive. It seems to me that the law in this country is getting closer and closer to politics more and more often, particularly in relation to the development of judicial review. Public confidence is vital. I do not think that it needs repeating as to why it is so vital, not just in terms of the judiciary but in terms of this very sensitive office. The director will have to make some extraordinarily sensitive and difficult decisions. As we all know, because we have been debating this Bill for some while, some fine judgments will have to be made by whoever is the director.

I also note that the director is to be appointed from among the Civil Service, which strikes a rather odd note. Why should the director not be appointed from anywhere? Why should he or she not be the most appropriate independent-minded person? As the noble Lord, Lord Faulks, said, it is a pity that Clause 4(4) restricts the power of the Lord Chancellor to direct to individual cases rather than to classes of cases. I wish that I had put down an amendment to that.

In all the circumstances—although the publishing of an annual report is extremely beneficial; and my noble friend the Minister may say that because of this and because of that it is superfluous to express on the face of the Bill the need for independence—if ever there were a need for a single simple statement in what is already 200-plus pages of legislation, it is that this person should be absolutely independent of government.

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[Lord Wallace of Tankerness]

The noble Lord indicated that in his contribution to the debate. I am seeking to reassure noble Lords that that reassurance is there on the substance. In individual cases it will be unlawful for the Lord Chancellor to interfere in any way. Moreover, a number of features incorporated in the Bill provide for transparency and parliamentary oversight.

[Lord Phillips of Sudbury]

My noble and learned friend always speaks with great persuasiveness, but I cannot see any point that he has made that makes the amendments that are being debated a problem for him. Amendment 3 makes the independence,

“subject to any direction or guidance given under subsection (3)”,

which covers one of the points that he made. As I say, there seems to be no argument that I can think of that makes the amendment inconsistent with the framework that the Minister has put forward. If that is right, given the universal anxiety about this point about independence, why in heaven's name not put it in the Bill?

[Lord Wallace of Tankerness]

In fairness to my noble friend, it is a good question, which I have asked myself. The answer, as I have tried to indicate in my earlier elaboration of the structure of the Bill, is that we are not trying to recreate a non-departmental public body. Consideration of whether it would be possible to incorporate the words “independent” or “independence” into Clause 4 as proposed would require us to consider very carefully whether that might inadvertently affect the proposed structure, but in no way does it detract from the heart of this matter. In respect of individual cases, the director of legal aid casework will in no way be subject to the influence or interference of the Lord Chancellor.

We need to try to get that structure right while allowing for the provisions that will be there, as my noble friend picked up and as the noble Lord, Lord Hart, indicated, in the part of the amendment that refers to direction and guidance. If that is combined with the very clear protection given—the freedom from any interference by the Lord Chancellor in individual cases—that gets the structure right without inadvertently affecting the proposed architecture of the Bill.

We seek to supplement this. The new clause that the Government propose in Amendment 5 is intended to provide a statutory requirement for the director to produce an annual report for the preceding financial year, detailing how the director has carried out his or her functions during that time. That would naturally include detail of the director’s interaction with the Lord Chancellor and how the Lord Chancellor’s directions and guidance had been used to guide decision-making over the reporting period. A noble Lord asked whether the director would have a voice. There will clearly be an opportunity for a voice because it will be his or her report that is submitted and subsequently presented to Parliament.

I hope that noble Lords will be reassured that this additional measure will provide further transparency in relation to the director’s functions and help to demonstrate that the prohibition as to interference in individual cases has been and will be adhered to. These are important safeguards to ensure the independence of the director.