Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023

Mike Freer Excerpts

Thursday 26th January 2023 General Committees

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

I beg to move,

That the Committee has considered the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023.

It is a pleasure to serve under you, Mr Vickers.

This draft statutory instrument will expand the civil legal aid scheme, making civil legal aid available in two new areas of family law and in certain domestic abuse proceedings. It will also broaden the acceptable evidence requirements for victims of domestic abuse.

The intention of the legal aid scheme, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—is to provide legal aid to those most in need. Over the past few years, several events and legislation have necessitated further consideration of legal aid provision, such as the post-implementation review of LASPO, the passing of the Domestic Abuse Act 2021 and the covid-19 pandemic.

Before turning to the amendments in the draft instrument, I will briefly set out how the legal aid scheme works in general. Civil legal aid is available to an individual if their issue is listed in part 1 of schedule 1 to LASPO. In most cases, an individual must pass a means test—a check on their financial eligibility—and a merits test to ensure that the taxpayer is not funding entirely unmeritorious cases. Evidence requirements must also be satisfied in certain cases, as set out by the procedure regulations. Those tests are to ensure that legal aid goes to the individuals who need it most.

Turning to some of the provisions of the draft order, four topics are covered. First, special guardianship orders, or SGOs, which are a court order to allow parental control over a child by individuals other than the parent. They are usually made to appoint members of the extended birth family or other significant people, such as a child’s long-term foster carer, as the special guardian. Currently, SGOs in private family proceedings, which are disputes between private individuals, are not within the scope of legal aid. Legal aid for SGOs are in scope only if sought in public family proceedings, generally proceedings brought by a local authority, such as care order proceedings.

Evidence submitted during the post-implementation review of LASPO in 2019 suggested that, without legal aid provision, prospective guardians might be deterred from seeking an SGO, and parents might not get the legal advice they required when faced with the loss of rights over their child. The Government accepted that evidence in 2019 and committed to making the amendment. Unfortunately, this amendment was delayed due to the covid-19 pandemic, but I am pleased that this draft statutory instrument has now been brought before us. It will bring SGOs in private family law proceedings within the scope of the legal aid scheme to deliver on that commitment and to ensure that families and guardians receive the support they need when seeking an SGO to bring stability to a child’s life.

Secondly, the statutory instrument will expand the availability of civil and criminal legal aid to reflect new protective orders and notices introduced by the Domestic Abuse Act 2021. A domestic abuse protection notice will provide victims of domestic abuse with immediate protection for up to 48 hours, and a domestic abuse protection order will provide a victim with longer-term protection from their abuser. Such notices and orders were created by the Domestic Abuse Act 2021 and will be piloted before a wider national roll-out. Currently, no provision for legal aid exists for such orders. However, legal aid is available for existing types of protective orders, such as non-molestation orders, so it is right that legal aid will also be available for victims of domestic abuse seeking a domestic abuse protection order to support those who are seeking refuge from domestic abuse.

Similarly, criminal legal aid will be made available to a respondent to a domestic abuse protection order or notice in the same way that it is already available for breaches of other kinds of protective injunctions, such as non-molestation orders. This will help the respondent to understand the requirements imposed by the order or notice.

Thirdly, the SI will amend the means and merits tests for parents contesting a placement or adoption order. A placement order authorises a local authority to place a child for adoption, and an adoption order gives the adoptive parents full legal status as the child’s parents. The current applicable means and merits tests differ, depending on whether a placement or adoption order is sought within care proceedings. This is contrary to the Government’s policy intention that parents or those with parental responsibility who are at risk of having their child permanently removed should be legally represented, regardless of whether the order is sought within care proceedings. The Government are grateful to the individuals and organisations who submitted evidence to us on this point, which has allowed us to make the amendment. The SI will therefore rectify the unintentional difference to ensure that the same means and merits tests apply to the parents in all instances when they are contesting a placement and/or adoption order.

Fourthly and finally, we are updating the supporting evidence requirements for victims of domestic abuse when they apply for certain legal aid services. One of the types of evidence that a victim of domestic abuse can currently provide is a letter from their medical practitioner after they have had a face-to-face appointment. The SI will also allow medical practitioners to provide a letter as evidence of domestic abuse after a telephone or video conferencing consultation, which will help make it easier for victims to evidence their claims and access the support they need. This change reflects medical working practices since the covid-19 pandemic, whereby appointments may be held over the phone or via video conferencing. It is right that medical practitioners who provide this vital service to victims of domestic abuse treat their patients according to their professional opinion, and not because of a requirement of the legal aid scheme. As medical working practices change and evolve with time, we will review the change after a year to assess how it is working in practice.

Before concluding, I would like to draw the Committee’s attention to the fact that the draft order was previously laid on 17 October 2022 but was subsequently withdrawn. The previous draft order contained provisions to realign access to immigration legal aid for victims of domestic abuse applying for indefinite leave to remain with eligibility under the immigration rules. That was to ensure that the Government’s policy intention of providing legal aid to these victims of domestic abuse kept pace with changes to the immigration rules. Unfortunately, a statement of changes to the immigration rules, which was laid on the same date in October 2022, directly impacted and contradicted the purpose of the draft order. The Secondary Legislation Scrutiny Committee also drew the previous draft order to the special attention of the House on that basis.

As a result of the inconsistency, the Government decided to withdraw the previous draft order. Hon. Members will notice that this draft order, laid in December 2022, does not contain any provisions relating to immigration legal aid. I want to reassure the House that my officials are diligently working with colleagues across Government to bring forward a further draft order in due course. We remain committed to ensuring that access to immigration legal aid for victims of domestic abuse is in line with the immigration rules.

The draft instrument before us expands the scope of civil legal aid in a number of ways to ensure that legal aid continues to be available to those most in need. Furthermore, the instrument sets out numerous amendments to ensure the original policy intention of LASPO is maintained, following recent events and other legislative changes.

--- Later in debate ---

[Mike Freer]

I will answer some of the points made in reverse order. The right hon. Member for Alyn and Deeside mentioned his constituents. I want to tread carefully, to ensure that I get this absolutely right. The family procedure rules committee is reviewing the existing procedures in case matters can be expedited to ensure that the families impacted are represented correctly. The issue he raised is very valid, and it has been well aired. My understanding—I will ask officials to write in more detail to ensure that we give him the correct advice—is that the SGOs will allow families to ensure that those who have been involved in murder are excluded from the decisions the right hon. Gentleman expounded. I will ensure that we give a full answer that is correct and in detail.

Turning to my hon. Friend the Member for West Bromwich West, may I say that, in this place, when we are making legislation, so often it is dry and technical. When colleagues are able to give a personal perspective, not only does it make the law better, but it brings the law to life. I thank him for his contribution, which cannot have been easy.

I will now turn to some of the points made by the shadow Minister, the hon. Member for Cardiff North. I am grateful for her support, and I always enjoy that speech—I think I have heard it several times now. We have implemented the Bellamy review and, apart from one item—pages of prosecution evidence—the three uplifts have gone through. I make no apologies for not putting further funds into a part of the payment scheme that all sides agree is antiquated and needs significant reform. On the review of civil and family matters, the consultation is closed. Our response is due imminently.

May I also correct a couple of assertions? Targeted intervention is not “tinkering”. I make no apology for being a careful steward of taxpayers’ money. I am not prepared simply to spray money at the legal aid system; I want to ensure that the intervention is targeted, so that it gets to the right people and gets the right result. We spend £1.6 billion on legal aid, half of which is on civil. The draft SI will inject a further £13 million. Last week, we injected a further £10 million of housing legal aid, and that is in addition to the recent £8 million of immigration legal aid. I firmly reject the assertion that the Government are not committed to the legal aid system. However, we are committed to ensuring that our investment is well spent, with targeted outcomes.

Question put and agreed to.