Legal Aid, Sentencing and Punishment of Offenders Bill

Madeleine Moon Excerpts

Monday 31st October 2011 Commons Chamber

[Simon Hughes]

The right hon. Lady gives a good example. It is often people with difficult personal circumstances who have such problems. They might be here and unwell or dying. They might be literally on their own in this country. All the evidence shows that if we want people who come here as refugees or for humanitarian protection to integrate, the best way to achieve that is for their family to be here to give them support; often that is intergenerational support.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Will the right hon. Gentleman give way?

[Simon Hughes]

I am trying to be quick, but I will.

[Mrs Moon]

Does the right hon. Gentleman agree that an increasing difficulty for the people he is describing is that they have to make a telephone call to see whether they are eligible for legal aid? We are talking about people who might have poor command of the English language. The people they talk to are not trained lawyers. They will no doubt get their stories, their dates and everything mixed up. That will, yet again, make it impossible for people to get the legal help and advice that they need, even when their case is totally justified.

[Simon Hughes]

I understand the hon. Lady’s point. My right hon. Friend the Member for Carshalton and Wallington and I, along with others, have tabled an amendment on telephone access that we will come to later. This is one of the matters on which I have had a significant number of representations from law centres and people who deal with such work. I understand her point and agree with it.

It is often not possible for family members to claim asylum because they are not in the UK. They therefore do not get the benefit of legal aid.

The UK Border Agency often requires evidence of the relationship. That is not surprising and it is perfectly proper. People are asked to undergo DNA tests. Spouses are asked to produce evidence of their marriage. That might be straightforward, but it might not be, either in law or in practice.

--- Later in debate ---

[Mr Llwyd]

Later on, I shall speak to my amendment that partially deals with this matter, and the right hon. Gentleman might wish to join us in the Lobby if I press it to a Division.

I want to be as quick as I can, because other hon. Members wish to speak and we have a lot of work to get through. If the hon. Member for Hammersmith (Mr Slaughter) is tempted to press amendment 74 to a Division, I will encourage my colleagues to follow me into the Lobby.

I should like to speak briefly to amendments 91 to 102, 83 and 103, which are in my name. I listened carefully to the Minister when he referred to amendment 91. He said that the words “or other intimate” are not necessary, which I accept. They probably are otiose, and therefore that point has been dealt with. I dare say that much of what the Justice Secretary will say tomorrow on self-defence will also be otiose, but that is another debate for another day.

Amendment 92 would broaden the definition by removing the words “physical or mental abuse” and replacing them with

“any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.

The Minister knows that many people wrote to right hon. and hon. Members and we heard lots of evidence on a subject that has exercised many in the Chamber this evening just as it exercised those in Committee. I have begun to question whether pre-legislative scrutiny is worth anything, because if we get hundreds of pieces of evidence from informed bodies, people at the sharp end and practitioners, and then decide to do little or nothing about them, the process is brought into disrepute.

Amendment 93 would insert the words

“or where an allegation is made that B has been abused by A or is at risk of being abused by A”

to line 4 of page 103. Paragraphs 10 and 11 to schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse. However, they do not provide for aid for the adult against whom the allegation is made. The amendment would bring the alleged perpetrator back within scope. That might sound strange, but I shall explain the thinking behind it in a moment.

Amendment 96 would insert the words:

“Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1)”,

and amendment 97 would add the words:

“Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances)”.

In responding to points made earlier, the Minister said that the section 37 investigation could well amount to nothing. However, such investigations are not taken lightly. They are always instigated on basic evidence, and caring for that child is not a routine matter, but an extremely important one.

Amendment 98 would add

“Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10”

to line 39. That would bring within scope both proceedings leading to an order under section 37 of the Children Act 1989 and all subsequent steps in family proceedings after a section 37 order has been made. It would also ensure that the person against whom allegations of abuse are made is brought within scope.

Amendments 100 to 102 are consequential amendments. Their purpose would be to amend paragraph 13, which provides legal aid to child parties in cases that come under the relevant parts of schedule 1, but not to adult parties. That provision will result in unrepresented adults being forced to cross-examine expert witnesses and, in many cases, even the child concerned. The amendments would therefore bring adult parties in such cases within the scope of legal aid provision.

Amendment 103 relates to the director of the Legal Services Commission. We debated in Committee the role of the commission, the independence, or not, of the director in arriving at decisions and the question of whether those decisions will simply be cost-driven. The amendment is designed to deal with those issues. It states that

“the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse;

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purposes of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse,

and in this subsection ‘domestic abuse’ means abuse of the kind to which paragraph 10(1) of Schedule 1 relates”.

The intention is self-evident.

I declare an interest at this late stage in my remarks. I practised family and criminal law for 15 or 16 years as a solicitor and for an equal number of years at the Bar, so I have some understanding of how the family courts work and would therefore gently admonish the Minister: the word “custody” went out of favour about 12 years ago—but that is by the bye. My background in this area of law leads me to believe that these changes might well have a devastating effect on families and, even more importantly, children. Both, of course, are closely interrelated: if it is disastrous for the family, it is obviously additionally disastrous for the young child as well. What is more, I believe that the Government’s decision to press ahead with a weakened definition of “domestic abuse” will result in many women—for it will be overwhelmingly women—entering into court proceedings alone and without legal aid funding.

[Mrs Moon]

Does the right hon. Gentleman agree that the problem is that we are coming from different directions? For Opposition Members, the priority is the protection of women and children who have been abused, who are facing abuse and who live in fear of their lives. For Government Members, the priority is saving money.

[Mr Llwyd]

I have to agree with the hon. Lady, and I would pray in aid another point about the more general civil cases where litigants in person will be 10 times more prevalent in courts than they were previously. That is simply to save money, but actually it will not save money. Instead, it will increase pressure on courts and court time and will be a complete disaster—a dog’s breakfast. It is worth remembering that 40% of magistrates and county courts have been closed and that the Ministry of Justice was looking for a 40% decrease in its first budget—that is rather convenient. However, I have no doubt that she is right, and it grieves me that money comes before the welfare of young children. We are talking about knife crime, juveniles going on the wrong side of the law and so on, and the Bill will do nothing to address that. Instead, I fear that it will make matters even worse, although I hope that I am wrong.

--- Later in debate ---

[Sheila Gilmore]

As far as I am aware, there is no such evidence. What the Minister has in mind is perhaps just an untoward result of his own legislation. I am not doubting that there will be many false accusations to be made here, but by ruling out legal aid for family cases and making the only route to it the ability to jump through the domestic violence hurdles, perhaps a situation is being set up, which might lead to that happening. It is an unnecessary consequence of a decision that has already been made to take legal aid out of family cases.

One might sometimes get the impression that legal aid is something for which lots of people qualify so that it has become a big problem in this country, but it is already the case that many people do not qualify for legal aid on financial grounds—even to get protection from domestic violence or to get the occupancy of their own home and the exclusion of a violent partner from it. Many people who already suffer the additional difficulties caused by relatively low incomes and small assets do not qualify, and even in cases of domestic violence the availability of assistance is limited.

The Bill could have another untoward consequence. Those advising people who have experienced domestic violence are likely to feel obliged to encourage them to take legal proceedings to establish the fact of the violence, regardless of whether such action is essential to their protection at that time. That will enable those people to jump through the hoop and qualify for legal aid for wider purposes, involving, for instance, what happens to the matrimonial home, what happens to the children and what happens in relation to other financial matters—issues that are extremely important to many women. Thus the potential for more litigation will be created. When applicants who would otherwise have qualified for legal aid do not do so, what will happen to the savings that we are told will be generated if additional, potentially non-essential, actions are brought?

In an intervention earlier, I asked a question to which I did not receive a satisfactory answer. The Minister said that a finding of fact in a family law case involving domestic violence would enable people to jump the hurdle, but I am not sure what kind of case he was referring to. An application for protection or for an injunction would be covered, but how will people gain access to the family court to secure that finding of fact if they cannot obtain legal aid in the first place? I do not agree with the suggestion that the Bill will widen the scope for qualification for legal aid.

I was concerned by some of the language used by the Minister. It reminded me strongly of things that I thought had ended. I remember that the police often used to say that women made up these stories, because it was not uncommon for women to report violence to the police and then “retract” their allegations. The police would say, “He will have his feet back under the table by tomorrow, so there is no point in doing anything.” That demonstrated a complete misunderstanding of the nature of abusive relationships, and of the pressures that were frequently placed on women to go back or take their men back—pressures exerted, sometimes inadvertently, by children whose mothers tried to put their needs first, or by other family members saying, “You have made your bed and you had better sleep in it”, or “Are you doing the best thing for the sake of the children?” That is not to speak of the financial and other practical pressures that may be imposed.

[Mrs Moon]

All too recently the Government wanted to give anonymity to male rapists. Now women who face domestic violence will not receive the protection that should be offered to them. The Government are failing to take account of what we know about the implications for women and children who, having experienced domestic violence earlier in their history, end up in the criminal justice system. Is it not the case that they do not understand what happens to women and children—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. We must have shorter interventions.