Legal Aid, Sentencing and Punishment of Offenders Bill

Robert Buckland Excerpts

Monday 31st October 2011 Commons Chamber

[Mr Djanogly]

The hon. Gentleman makes the exact point that I would have made in response to him. Evidence is used in a trial, but the GP does not make the decision, he gives evidence. We see the trial as being the objective evidence, and that is what we suggest in the Bill.

[Mr Robert Buckland (South Swindon) (Con)]

My hon. Friend makes proper points about the need for courts to make findings of fact. Does he accept, however, that there is a potential problem with regard to undertakings? In proceedings in which undertakings could be a way of sorting out the problem satisfactorily, those advising the parties involved could prejudice their clients’ ability to obtain legal aid in future if domestic violence rears its ugly head again. Will he look again at how we can manage those circumstances so that people are not put in that potentially prejudicial situation?

[Mr Djanogly]

I am happy to consider the particular circumstances that my hon. Friend mentions on the subject of undertakings, but again we are talking about a situation that does not involve an objective test. It would be down to the word of the two people making the undertaking. In certain circumstances that may be correct, but in others it may not.

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[Mr Buckland]

It is a pleasure to contribute to the Report stage of the Bill. As a Government Back Bencher, I sat through and took an active part in the debates in Committee. They were comprehensive and dealt with many issues, not least the definition of domestic violence and the proposed criterion by which applicants may in future be able to benefit from representation via legal aid. I make no apology for having expressed, in an earlier intervention, what I considered to be reasonable concern about the application of the criterion. However, I think it important for us to bear in mind that the debate is not about the rights of women as against an approach that would deny them those rights.

Although Opposition Members have made some excellent contributions, one intervention on the speech of the hon. Member for Edinburgh East (Sheila Gilmore) betrayed a complete misunderstanding of the Government’s approach to the granting of legal aid to vulnerable people. No one is suggesting that there should be an end to legal aid for victims of domestic violence. Far from it. The Government are saying that there should be that protection, there should be that level playing field, and there should be that intervention. People who have been victims of domestic abuse—I prefer that term, because I consider it to be a wider and fairer definition—may be women or men, and they come from a variety of backgrounds. Such abuse knows no social or economic division.

I speak on the basis of nearly 20 years of experience, having prosecuted and defended in cases in which domestic violence was a factor. It is, perhaps, appropriate for me to chart from my personal experience as a criminal legal aid lawyer—although, as I have not practised in civil legal aid in recent years, I have no particular relevant interest to declare—the evolution of the courts’ approach to domestic violence. I remember the days when the phrase “It’s only a domestic” was used to describe these scenarios. That was wholly unacceptable, wholly wrong, and, according to our present standards, archaic. We have come a long way since those unfortunate days, and the courts have rightly been brought face to face with the realities of violence in the home.

Having met hundreds of victims of violence and abuse, I know that many of them do consider themselves to have been victims of domestic violence in the first place. They are people who were involved in a loving relationship, many of whom harbour the hope that they may return to their abusive partners. They are confused and vulnerable. Many are caring for children who have witnessed, or have been a party to, what has happened in the home. They do not know where to turn.

Giving evidence in court is a tremendous ordeal for such people, and many of them do not go through with it because they see it as a way of reliving their experiences in the home. The level and variation of their vulnerabilities is quite complex. I think, for example, of women who, having nowhere else to turn, go to refuges such as the one in south Swindon, in my constituency, which provides an excellent service for vulnerable women and their families. They are not mentally in a position to start immediate proceedings, whether those proceedings constitute a complaint to the police or the instruction of a solicitor. At that stage, when they come to the refuge, they have nowhere else to go and are literally in a state of desperation. They are not mentally prepared for the ordeal of having to go to the authorities. We must bear that in mind when considering the test applied to the finding of fact.

I know that the Opposition had that matter in mind when drafting amendment 74. I have looked very carefully at their proposal, and I sympathise with the motive behind it. Some of it has merit, but there are problems with it because it would not cure the particular mischief that Opposition Members have said could happen. None of us wants there to be any artificial inducement for people to claim that there has been domestic abuse when it has not happened, and my concern is that the amendment would not shut the door on that problem. The Government are right to identify that potential problem, and it was mentioned time and again in the consultation to which the Minister referred.

[Glenda Jackson]

With all due respect, I am having difficulty following the logic of the hon. Gentleman’s argument. He seems to be basing it on the belief that the Government’s desire to find fact is central and essential, yet he has already stated that many women who suffer severe domestic violence are in such a mentally discombobulated state that they find it impossible to speak to the authorities. We have all read recently of scandalous cases in which the authorities have markedly failed to protect women, even though the facts have been written in capital letters. Will he clarify his argument?

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[Mr Buckland]

I am very grateful to the hon. Lady, and I am happy to do so. We agree that when a woman presents herself at a refuge, there can be an element of discombobulation, to use the hon. Lady’s word. However, there comes a time—perhaps in a matter of days, or even longer in the case of particularly vulnerable victims of domestic abuse—when, with the support and help of professionals in the refuge or elsewhere, they are able to make a complaint. They can make a complaint to the police, in the form of either a telephone call or attendance at a police station with support, or they can get help from a solicitor and give them instructions to bring a case for a civil injunction or an ouster order. That has to follow. My point was that it is unfair to expect women to make a complaint immediately, in the hours that follow their departure from home. That is also true in many other contexts.

I think the hon. Lady and I would agree that, in the case of rape allegations, the rather worrying aspect in the past was that the victim was often asked, “Well, why didn’t you go to the police immediately?” We know that that is not a good argument when it comes to serious offences such as rape, which can take days, months or years for people to report. The point I am seeking to make is that there has to be some complaint procedure in the end.

Proposed sub-paragraph (10)(k) in amendment 74 uses the term

“other well-founded documentary evidence of abuse”.

I know it is difficult to choose a precise phrase that sums up what the amendment’s proposers would regard as a sound basis of fact, but that term is open to too much interpretation when it comes to determinations on the granting of legal aid.

I think the proposers of the amendment are perhaps on sounder ground in proposed sub-paragraph (10)(h), which mentions

“an undertaking given to a court that the perpetrator of the abuse will not approach the applicant who is the victim of the abuse”.

If there is any criticism to be made of that, it is that it is perhaps drafted a little too precisely. Many undertakings given to courts in relation to domestic abuse include not just non-approach but other prohibitions regarding particular conduct, contact and other aspects of the mischief that is the subject of the proceedings.

It is important that we consider the particulars of the matter, because when parties come to court with a claim relating to domestic abuse, there is quite rightly an impetus for compromise. The parties represented by solicitors or counsel rightly see whether proceedings in the form of evidence given and tested before a judge can be avoided by undertakings being given. “Undertakings” is a legal word for promises given by one or other party regarding future conduct. In fact, in many cases both parties make promises not to behave in such a way as to cause future strife. That is laudable, and it has been the practice in the civil courts for many years. It saves court time, it saves victims of domestic abuse having to undergo the trauma of giving evidence, and it looks to the future by trying to draw a line under the sins of the past with regard to the conduct of people who have been in a relationship involving domestic violence.

Let us put ourselves in the position of a solicitor or legal adviser who has to advise a party to such proceedings before any decision is made about the giving of undertakings. I see a problem occurring, because if undertakings are not to qualify for the purposes of obtaining future legal aid in domestic violence cases, solicitors will have to advise their clients that, if they accept undertakings, that could prejudice any claim for legal aid.

That worries me, for two reasons. First, it could provide a perverse incentive for more litigation, which could result in fewer undertakings being given and a concomitant loss of court time and increase in expenditure. Secondly, it would place legal advisers in a very difficult position when it came to the giving of proper advice. Solicitors or barristers should be there to give advice based on the evidence in the case, rather than on any future contingency that may or may not occur.

Could there not be a way through that problem by parties in the case, through their legal representatives, inviting the judge who presides over the proceedings to indicate his or her view of the strength of the evidence? If there were an injunction in which the parties were minded to accept undertakings, the judge might say, “In this particular case I think there was very strong evidence that could have supported the granting of an injunction.” The legal representatives could then use that if there were any future domestic abuse leading to a legal aid application. I urge the Government to consider that potential solution to the problem, as I believe it could help not only the parties in a case but those who advise them legally.

This debate should not be about whether one party or another is sound on domestic abuse. The truth is that there is a welcome and proper consensus about the seriousness of the incidence of domestic abuse in our society. Politicians, the police and all agencies are determined to stamp it out, intervene prior to violence taking place and deal with the root causes of why one partner in a relationship should choose to abuse the other, whether emotionally, financially, physically or otherwise. This debate is not about whether we believe domestic violence is a problem; rather, it is about how the criteria are set. It is therefore a rather narrow debate, and it deserves more mature reflection than some Opposition Members have thus far given it. [Interruption.] I am sorry that Opposition Members do not consider 20 years of experience of actually dealing with domestic violence cases to be important, because I would like to think that those of us who have dealt with victims of domestic violence have a contribution to make, and I bitterly resent any Opposition suggestion—especially in sedentary interventions—that I am deliberately prolonging these proceedings. I am not doing so, and if that accusation is repeated, I shall raise a point of order.

[Glenda Jackson]

In the hon. Gentleman’s argument—and, more centrally, in the Government’s argument—no consideration is given to the possible consequence that what I regard as a crime may lose that classification of criminality, depending on whether the sufferer is or is not granted legal aid. Surely that is a very dangerous road for us to go down.

[Mr Buckland]

I am, as always, grateful to the hon. Lady because she makes measured contributions, and I shall respond to her point. A distinction must be drawn between the scenario in question, which is a civil legal aid scenario, and the concern that she expresses about the potential decriminalisation of what I agree is a serious crime. The tests are different; as the hon. Lady knows, the evidential tests are different, and, if anything, the evidential hurdle would be higher in the criminal scenario.

I have some sympathy with those Opposition Members who said that a uniform definition of domestic violence, not just in the legal context but across the whole activity of Government, would be welcome and a step forward. The Association of Chief Police Officers definition is largely sound, although I do have one criticism of it: it does not mention children. Domestic violence can, of course, be directed towards, or be conducted in the presence of, children. The restriction to adults alone is therefore perhaps a deficiency, and all of us, as legislators and campaigners, should reconsider that.

[Mark Menzies (Fylde) (Con)]

It is important that we do not think of this issue only in terms of the relationship between a husband and wife, because domestic abuse can also occur in other circumstances, such as where people take in an elderly parent. That may seem a good idea at the time, but subsequently events might take a different turn and the elderly parent may therefore also become a victim of abuse.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. The hon. Gentleman has only recently entered the Chamber, and he ought not to have intervened so soon. It is, of course, up to the hon. Member for South Swindon (Mr Buckland) to decide if and when to take interventions, but may I remind Members that they ought to make sure they have been in the Chamber for some considerable time before seeking to make interventions?

[Mr Buckland]

I am extremely grateful to my hon. Friend for making the point about elder abuse. It often occurs in a domestic scenario, and we, as policy makers, should also consider it when setting out a unified cross-Government definition of domestic violence.

[Jeremy Corbyn (Islington North) (Lab)]

Earlier, the hon. Gentleman made the valid point that in the past the police did not take domestic violence seriously. Does he agree that there is currently a problem in that the police often do not take elder abuse seriously, and often avoid getting seriously involved in such cases because it is not a specific crime?

[Mr Buckland]

The hon. Gentleman is right, and I am sure that he will have come across appalling instances of the mistreatment of relatives when reading the contents of his mailbag and inbox—as, indeed, we all have. In that scenario, the police often face the same difficulty that confronts them when dealing with cases involving vulnerable, and often young, women who are the victims of domestic violence: the complainants—the victims—are often not in a position to provide clear evidence. Because of their vulnerability or their age, they are seen as a soft target who might crumble if put under pressure in court. That is why it is incumbent upon all of us to consider different mechanisms in which their particular vulnerabilities can be accommodated so that the truth will out.

[Sheila Gilmore]

I would like to know where the hon. Gentleman’s speech is going. This debate is about the fact that legal aid is being withdrawn for family actions except in very limited circumstances where there is domestic abuse. Fascinating though this discussion of elder abuse is, I do not understand where we are heading.

[Mr Buckland]

I am sorry the hon. Lady takes that view. I listened to her speech very carefully, and I was glad that she eventually returned to the topic under discussion because, with respect, I must say that at one point she was addressing an entirely different scenario. That may still exist in the imaginations of some Opposition Members, but it has largely disappeared from the imaginations of the occupants of the Government Benches, on which there is consensus among the parties.

I make no apology for dwelling at length on this issue. It deserves careful consideration at this stage of our deliberations on the Bill, and I would like their lordships to ponder what has been said about it. I therefore bitterly resent the suggestion that I am deliberately padding out my remarks.

This issue should be addressed by Ministers not only at the Ministry of Justice, but at all other Departments with a direct role in domestic policy—such as the Department of Health and the Cabinet Office. They must all think very carefully about the benefits of a unified definition of domestic abuse and what that can bring, not only to the workings of Government but to all victims and potential victims. Unless we get a grip on the root causes of this problem, the House will return to it year after year, and there will be not only constituency examples to ponder, but a general and depressing pattern of abuse in the home.

I have carefully considered Opposition amendment 74 and, as I have said, it is not without merit, but although it has been drafted carefully in some respects, it does still leave the potential for mischief, which we must avoid when addressing the granting of public funds.

I am sure the Minister has listened carefully to what has been said on both sides of the House, and that he will go away and consider the important points that have been raised. None of us wants to see a scenario whereby genuine victims of domestic abuse lose out and end up being exposed to situations such as those outlined by Members both in this debate and in Committee.

These issues should not be the subject of political knockabout because they involve real people who have suffered real harm, and who continue to be at risk. It is for those reasons that I have played what I hope has been a constructive part in this debate.

[Ben Gummer]

As ever, it is difficult to disagree with even a scintilla of what my hon. Friend the Member for South Swindon (Mr Buckland) has said. As in Committee, we have had a constructive debate on this subject, and especially so on this occasion as so many contributors on both sides of the House with experience of dealing with domestic violence have spoken.

I am perfectly happy to concede that my experience and understanding of the issue under discussion is very limited, but ever since becoming a Member of Parliament in 2010, shocking case after shocking case has been laid before me in my surgery, and I have seen the work done by the various institutions in my constituency that deal with domestic violence. I was not a specialist in this area before, nor would I be able to lecture some on the Opposition Benches on it, so the intervention by the hon. Member for Edinburgh East (Sheila Gilmore) was particularly important in saying that we had come a long distance on how the police and agencies deal with domestic violence, and it is important that we do nothing to retard that.

With that in mind, I find it surprising that the tone of some contributions would suggest that on this issue there was division along political lines—one Bench against another. My hon. Friend the Member for Broxtowe (Anna Soubry), who cannot be here today because she is in hospital, has campaigned against domestic violence, especially violence against women, for many years. My hon. Friend the Member for South Swindon (Mr Buckland) has not only sat on the bench recently dealing with cases where domestic violence had been an issue in the criminal court, but prosecuted and defended on that matter. It therefore behoves hon. Members, particularly some on the Opposition Front Bench, not to shout and hurl insults at Conservative Members who wish to give a detailed and reasoned explanation of their views, and not to suggest that there is political division between us on the matter of domestic violence.

I remind Labour Members that the Government are going to produce a comprehensive strategy on tackling domestic violence shortly. I look forward to seeing it and I hope that it will draw together the various threads that we have heard about in today’s debate. That needs to happen because one part of government does not speak to another, just as parts of local government and the local police force do not speak to one another, as all of us will have found locally time and again.

One example will suffice in that regard. It concerns the most horrendous attack on a constituent whose husband had been released from prison on licence. Even though there was a multi-agency public protection arrangement—MAPPA—protocol set up around this gentleman, the attack was revealed only because of a revelation made by the six-year-old child of my constituent in their primary school. The school had never been involved in the MAPPA discussions about this offender, even though, had it been, the abuse would have been identified some weeks beforehand. I hope in highlighting this to say that the impression that we can solve the problem of domestic violence via legal aid and the courts —I know that this was not all Members, but the impression was given—is fundamentally misconceived.

We will deal with this problem—this will be a very long haul—only if we take a cross-governmental approach, and not one led by what happens when things get to court, let alone when they get half way through. The hon. Member for Bishop Auckland (Helen Goodman) correctly said that women who report to the police have typically had 20 incidents of assault prior to that moment. We need to deal with things before then. The suggestion that we must be able to solve all this in the definition of the domestic violence protocols within this legislation—

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[Mr Buckland]

I pay tribute to the hon. Member for Kingston upon Hull East (Karl Turner), who speaks from professional and personal experience on these matters. I am profoundly grateful to him for his candour and passion. I am also grateful to the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), a fellow practitioner from Wales, who has considerable experience of these matters.

I rise to reinforce some of the points that have been made about some aspects of the proposed reforms. I am sure that my hon. Friend the Minister will accept that it is difficult to define an exceptional case. By the very nature of the category that the Legal Services Commission uses to deal with exceptional cases, they are indefinable. I accept that he will therefore find it difficult to assure us categorically that all cases that cause proper concern—particularly the complex cases involving young children who have had difficulties at birth—will be covered by the Government’s proposals.

We are right to raise these concerns. Clinical negligence cases are somewhat unusual in that the expenditure is incurred at the beginning. The firms of solicitors dealing with such cases are often not the big firms that live in the City of London, but the firms of partners who have developed a degree of experience in such cases and who understand how to relate to the families of people who have suffered from alleged clinical negligence. However, such firms do not necessarily have the resources to enable them to spend lots of money on the preliminary medical investigations that are essential in preparing the ground in such cases.

I support the remarks made by my hon. Friend the Member for Hexham (Guy Opperman), who, in his excellent speech, raised the possibility of producing a joint report, at the beginning of each case, for the NHS—the defendant—and the claimant. That is a good point to make, but we are not in that position yet; we are still in an adversarial position. My deep worry is that a lot of cases will go without the necessary representation or help because those firms do not have the resources to dip into their pockets and to pay the thousands of pounds that are needed to prepare a case for making a claim.

I speak from experience, having served as a member of a funding review panel for some 10 years, and having dealt with appeals made by solicitors against the refusal or revocation of legal aid certificates in cases of clinical negligence. It would be wrong to say that a carte blanche exists at the moment. Even now, it is not easy for solicitors to satisfy the Legal Services Commission. I want to ask the Government to think carefully about the observations made by Members on both sides of the House, and to hesitate before seeking to implement the full thrust of these proposals.

There are several ways of dealing with this question. The first would be the full retention of legal aid for such cases. Another would be its retention for those aged 18 or under who are making claims against the NHS for clinical negligence. A further option would be to allow the provision of legal funding for initial advice and assistance in the preparation of reports before the commencement of any proceedings. Such an option would not cover representation, but it would deal with the preliminary stages. I ask the Government to consider those alternatives very carefully. I know that this matter will be hotly debated in another place, where I am sure full account will be taken not only of what we have said here tonight but of any observations that are made there.

[Mr Djanogly]

Let me first set out the scope of what we are talking about. Clinical negligence spend through legal aid in 2009-10 was about £17 million, consisting of around £1 million for legal help and around £16 million for representation. Closed-case volumes for legal representation in clinical negligence in 2009-10 were just over 2,300. It is estimated that removing clinical negligence from scope will save around £17 million per annum on legal help and representation, taking account of the exceptional funding regime and the estimated income from the supplementary legal aid scheme. Continued spend of £6 million through exceptional funding of the £16 million currently spent on representation in clinical negligence is foreseen. NHS figures for 2010-11 show that 82% of clinical negligence cases, where the funding method is known, were funded by means other than legal aid. That is the current situation.

The NHS Litigation Authority figures for 2010-11 show that of 2,002 legally aided claims, some 718 were claims for children, which represented 36% of claims funded through legal aid. Annexe B of the Government’s impact assessment on the reforms to conditional fee agreements sets out estimated savings of £50 million to the NHS Litigation Authority as a result of abolishing recoverability of success fees, and after-the-event insurance premiums.