Legal Aid, Sentencing and Punishment of Offenders Bill

Sheila Gilmore Excerpts

Monday 31st October 2011 Commons Chamber

[Mr Djanogly]

I expect the amendments to be generally well received.

The Bill currently refers to funding for advocacy being available in the first tier tribunal, and amendments 17 and 18 correct that position by making available funding for advocacy for appeals to the upper tribunal. Amendments 15 and 16 serve a similar purpose but in relation to sections 31 and 34 of the Criminal Justice and Court Services Act. Appeals under section 31 are to the Court of Appeal, rather than the first tier tribunal, and funding for advocacy for such appeals is already covered by paragraph 2 of part 3 of schedule 1. Appeals under section 34 are to the High Court, and funding for advocacy for such appeals is already covered by paragraph 3 of part 3 of schedule 1.

I now turn to the family and domestic violence amendments, almost all of which have been debated in Committee already. I would like to reiterate why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid, as it stands, is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary applications to carve up family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will, therefore, remain available for mediation in private law family cases, and we estimate that we will spend an extra £10 million a year on mediation, taking the total to £25 million a year.

[Sheila Gilmore (Edinburgh East) (Lab)]

Does the Minister not accept that in many cases where people are separating or divorcing, there is an imbalance of power, whether financial or emotional, and that mediation is simply not suitable for many such cases?

[Mr Djanogly]

I certainly accept that there will sometimes be an imbalance, and in relation to court proceedings themselves, we are proposing other measures—the ability for a judge to give interim orders, for instance—aimed at redressing that imbalance. However, I also accept the hon. Lady’s suggestion that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family law cases where there is evidence of domestic violence or where a child is at risk of abuse.

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[Mr Djanogly]

Everything the Government have said, and every action we have taken, shows that we take domestic violence extremely seriously. To some extent, the hon. Lady and other hon. Members are approaching this issue from the wrong direction in that they begin by addressing domestic violence, but that is not the right starting point. The starting point for the Government is that we are removing legal aid for private family law, but we are keeping it for domestic violence, as that is of the utmost concern to us. My point, however, is that we need to have objective evidence of domestic violence so that we target taxpayers’ money on genuine cases where the victim needs assistance because they are intimidated or otherwise disadvantaged by the fact of facing the abuser in the proceedings.

[Sheila Gilmore]

Will the Minister give way?

[Mr Djanogly]

I shall make a little more progress first.

The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, they will be set out in regulations under clause 10. We believe it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation as it can be amended to respond to particular issues that may arise during the operation of the scheme.

In the consultation, we suggested what might be the forms of evidence of domestic violence, and we listened to the views expressed on that in response. As a result, we have widened the range of forms of evidence, and, furthermore, only one of the forms of evidence would be needed. Legal aid will be available for victims of domestic violence in private family law cases where one of the following criteria is met: where a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party is in place or has been made in the last 12 months; there is a criminal conviction for a domestic violence offence committed by the other party against the applicant for funding, unless the conviction is spent; there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding; the applicant for funding has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence, and a plan has been put in place to protect them from violence by the other party; there has been a finding of fact in the family courts of domestic violence by the other party, giving rise to a risk of harm to the victim.

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[Mr Djanogly]

That relates to amendment 74. I am going to deal with it and I am sure that my hon. Friend will be pleased with the answer I will give her.

Accepting self-reporting without objective evidence would prevent us from effectively focusing assistance on victims of domestic violence who were unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments refer to evidence from professionals in a variety of roles. I explained that we have widened our criteria so that legal aid will be available where the victim has been referred to a multi-agency risk-assessment conference as a high-risk victim of domestic violence and a plan has been put in place to protect them from violence by the other party. Such referrals can be made by a range of professionals. Furthermore, a finding of fact in the family courts that domestic violence has occurred will trigger legal aid, and a court will be able to assess any relevant evidence.

Amendment 74, to which my hon. Friend referred, would prevent a time limit from applying to any evidence. We have said that a 12-month period, where relevant, will apply. We consider that 12 months will be an appropriate period to protect victims and to enable them to deal with their private family law issues. However, if the criteria were to arise again—for instance, if a second protective injunction is made—the time period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to the breach of an individual’s rights under the European convention on human rights, particularly article 6.

[Sheila Gilmore]

Will the Minister explain how the individual achieves the finding of fact in a family court in order to trigger legal aid if they cannot get legal aid to take proceedings in a family court?

[Mr Djanogly]

The answer is that they can get legal aid to take those proceedings.

Amendment 93 would provide for legal aid to be available for any party in a private family law case who has been the subject of allegations of domestic violence or the risk of domestic violence. We debated an identical amendment in Committee. In considering whether alleged perpetrators should receive legal aid in these cases it is important to remember that we are seeking to protect the most vulnerable in society. Alleged perpetrators would not necessarily fall into that category in the way a victim of abuse would. Furthermore, allegations would not meet the test of clear, objective evidence that would otherwise apply in these cases. Accepting such an amendment would be likely to cost tens of millions of pounds in savings, without achieving the objective of targeting legal aid on those most in need.

I turn to the other amendments relating to private law children cases, such as disputes about custody, where a child is at risk of abuse. These are amendments to paragraph 11 of schedule 1, which provides for legal aid to be available in such cases for the party seeking to protect the child, where there is objective evidence of the risk of abuse. Again, identical or near-identical versions of the amendments were discussed in Committee.

Amendment 96 would provide for applications for financial provision for children to be in scope for legal aid where the child is the subject of one or more of the measures listed in sub-paragraph 11 (1) of schedule 1. The list of orders in that sub-paragraph is intended to cover orders and procedures used to secure protection, and it includes orders under section 8 of the Children Act 1989, which may be used in that way, including contact and residence orders. The effect of amendment 96 would be that applications for maintenance or other financial provision for a child would be in scope whenever a contact or residence order has been made in relation to that child, regardless of any need for protection. The original legal aid proposals were silent on the issue of children at risk of abuse in private law children cases.

We have listened to the concerns raised during the consultation on this point. For example, one party might be seeking an order to bar an abuser from unsupervised contact with a child. We agree that child protection is of paramount importance and we recognise that it would be difficult for the protective party to act in person in cases of potential complexity and heightened risk to the child requiring prompt and clear action. This is a separate rationale to a situation in which the adult has been subject to abuse such that he or she cannot be expected to represent themselves against their abuser.

We do not consider that cases concerning financial provision are of equal priority and nor do they raise the same issues. Financial matters are of lower objective importance than child protection and we would not expect the protecting party to encounter the same level of complexity—still less risk—or need for urgent protective action in a case about financial provision. Furthermore, the person presenting the risk of abuse might not be the other party in the financial provision proceedings. Although protecting a child from abuse is clearly of high importance, it is not appropriate that in a case for financial provision, which is a separate matter from the consideration of protective measures, a distinction should be drawn between maintenance for children considered at risk of abuse and maintenance for other children.

Amendment 97 would bring into the scope of legal aid the entirety of any proceedings in which the court was considering whether to direct the local authority to investigate the circumstances of the child. Under section 37 of the Children Act 1989, the court may make such direction if it appears that it might be appropriate for a care or supervision order to be made. The amendment appears to be unnecessary and, in any event, goes too far. Under paragraph 1 of the schedule, legal aid will be available for public family law cases such as care and supervision proceedings, as at present. We believe that the state should ensure that families are able to challenge decisions made by public authorities about the provision of care for children.

Directions under section 37 of the 1989 Act are considered to be public family law matters for legal aid purposes because they relate to care and supervision orders under paragraph 1(1)(b) of schedule 1. Funding is therefore available in relation to section 37 issues. There is no reason, in principle, why a case could not be adjourned briefly in such a situation to allow the parties to seek a legal aid lawyer for the section 37 issue if that were warranted. Providers are able to use devolved powers to grant immediate funding in emergency situations, subject to means and merits-testing.

Amendment 98 also references section 37 directions and would bring into scope any private family law proceedings that involve a child in respect of whom a direction under section 37 of the 1989 Act had been given, regardless of the outcome of that section 37 investigation. That is a broad proposition that I do not think can be justified.

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[Kate Green]

Indeed, the Minister was more concerned to avoid the number of false allegations that he seems to regard as the major difficulty with domestic abuse cases. Opposition Members are far more concerned about the protection of vulnerable victims and believe that that should be the first and overarching priority. [Hon. Members: “Hear, hear.”]

Finally, I want to say a little more than I was able to raise in interventions about the use of mediation. Of course we all want to see mediation used wherever it is appropriate and possible for separating couples to reach agreement through that route. We also know, however, that one thing that is particularly damaging to children is conflict. If there is a high degree of conflict, it is unlikely, even if domestic violence or abuse is absent, that mediation is going to be effective or can possibly work.

We are therefore again a bit puzzled about the Minister’s intentions on the use of mediation. I think he said earlier that the requirement was not to undertake mediation but to go through a process whereby it would be determined whether mediation was suitable for a separating couple. Then he said that there would be no compulsion on people to accept mediation. Well, that is certainly true, but if there is no other form of help or assistance available, it is very much a Hobson’s choice.

Can the Minister see any scope for extending access to legal aid to those small number of cases where there is a high degree of conflict and perhaps no abuse or violence as such, but where the conflict would certainly be damaging to the well-being of children? What assessment has he made of that? What does he consider might be the extent of such cases? Has he any idea or any calculation? What consideration has he given to the impact on children and will he look at ways to offer particular protection to children from the very harmful effects of conflict, which we all know to be the case?

[Sheila Gilmore]

I have an interest to declare, as I have worked as a family lawyer and predominantly in legal aid over many years. I have been involved in many cases, some of which involved domestic violence and some not. The Minister seems obsessed with the notion that people might make false claims to get legal aid.

[Yasmin Qureshi]

Does my hon. Friend agree that there is no statistical evidence to show that reports of false allegations of domestic violence are any higher than they are for any other crime where people are potentially making false allegations?

[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.

[Sheila Gilmore]

I agree with my hon. Friend. Earlier speeches gave us the impression that we were retreating to a previous position, and that much of the ground that many of us thought we had gained might be lost. That would be highly regrettable, and I hope that it is not the case. I hope that, even at this late stage, the Minister will reconsider his opposition to our amendment.

I was heartened to read in the Sunday papers that members of the minority party in the coalition were up for a fight on these issues. I hope that that was not just more Sunday paper grandstanding, giving a false impression to many campaigners and others who have been hoping against hope that the Government will see reason.

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[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.