The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death of the noble Lord, Lord St John of Fawsley, on 2 March. On behalf of the House, I extend our condolences to the noble Lord's family and friends.
To ask Her Majesty's Government what action they are taking to ensure consumers are getting good value for money from companies that are marketing services helping people make payment protection insurance mis-selling claims.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government require claims management companies to follow conduct rules focusing on protecting the consumer. The Ministry of Justice's Claims Management Regulation Unit will take action against companies which fail to comply.
Lord Kennedy of Southwark: Does the noble Lord agree that the mis-selling of payment protection insurance was a scandal? Does he agree that making a claim is relatively straightforward, that you do not need to use a claims management company, and that losing 30 per cent of your compensation in fees and charges is not very good value for money? Would he agree to meet me and consumers' representatives to discuss how consumers can keep more of their money?
Lord McNally: My Lords, I would be very happy to have such a meeting, and I congratulate the noble Lord on his campaign in this area. It is an area where consumers have not been best served and where they are not aware that there are many simpler ways of reclaiming this money than paying exorbitant fees to claims management companies. I hope that as a department we are on the case but I would gladly meet the noble Lord and colleagues to discuss it further.
Baroness Kramer: My Lords, is the Minister aware of an issue raised by the Building Societies Association-that these claims companies are pursuing claims
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Lord McNally: My noble friend is right to draw attention to another example of abuse. Where such abuses are brought to our attention, we remove companies from the list of those which are able to offer these services. Again, I emphasise that regulations and protection for the consumer are in place. We possibly need greater awareness among consumers of their rights, and I shall certainly take that back.
Baroness Sherlock: My Lords, I declare an interest as a director of the Financial Ombudsman Service. My best guess is that the banks have provisioned about £9 billion for PPI. If about 80 per cent of cases going to the ombudsman come through claims management companies, then at least £2 billion is going to CMCs rather than going back to customers. Given that, will the Minister give the House an undertaking that his department will act to require CMCs to declare their fees up front and to tell customers that they are not required to use them as they could make a claim themselves for free?
Lord McNally: My Lords, those are exactly the regulations that pertain to these companies. However, because of the pressure of sales, there is no doubt that people are being misled in that way. We shall need to take further action because, as the noble Baroness rightly says, one does not need a pocket calculator to realise that these companies operate in an area where they can make a lot of money, which should quite properly go into consumers' pockets.
Lord Campbell of Alloway: My Lords, why is the Minister of Justice concerned with this? If there is concern, why is not the Lord Chancellor asked to deal with this? What is the difference between the one and the other now that we do not have the old-style Lord Chancellor or Minister of Justice?
Lord McNally: I was halfway to agreeing with the noble Lord because one of the first things I asked was: why is the Ministry of Justice regulating claims management companies? I was told-I am looking at the noble Lord, Lord Borrie, although I do not think he was in post at the time-that the Office of Fair Trading was reluctant to take on this responsibility. The noble Lord nods his head. I still wonder whether there would not be a better home for this matter, but while we have it, noble Lords should know that our motto is "We are from the Ministry of Justice; we are here to help". We certainly intend to ensure that, while we have a responsibility to regulate this industry, we will regulate it with all due diligence.
Lord Hughes of Woodside: My Lords, is the Minister aware that there appears to be a scam on the go? I have had about 12 phone calls, in which I have always been addressed by name, saying that they will help me to get money back under the payment protection scheme.
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Lord McNally: I would take the name of the company and report it to the Ministry of Justice. Cold-calling in person is banned; high-pressure telephone calling is banned; and unsolicited text messaging is banned. I am sure that noble Lords to whom this has happened for the first time have already realised that this is an industry where a lot of consumers' money is at stake because of the success in making the banks take responsibility for this mis-selling. As the noble Baroness said, there is something like £8 billion or £9 billion that could be returned to consumers and, to put it no higher, there are some very dodgy practices at work with people trying to get their hands on that money. I can assure noble Lords that the Ministry of Justice will accept its responsibility in this area. We are talking to the Financial Ombudsman Service as well and we shall pursue this matter in the best interests of consumers.
Lord Flight: My Lords, would it not be appropriate for the head of the Financial Services Authority to warn consumers on this front? The whole point of having a financial regulator is to protect the public and, in the past, the head of the FSA regularly gave warnings to the public.
Lord McNally: My Lords, the responsibility for this is with the Financial Ombudsman Service. The financial ombudsman has identified this and put out warnings. Both the Financial Ombudsman Service and the MoJ on their websites give clear directions to consumers about how they can make claims in this area without using these companies and at no cost to themselves.
Lord Rennard: My Lords, does the Minister recall the very serious controversy in 1999 over the introduction of the closed-list system for electing Britain's MEPs? Does he agree that while Britain is under an obligation to use a proportional system for choosing MEPs, there are much better ways of doing so? Could not consideration be given to using, for example, the transferable system already in use in Northern Ireland for electing MEPs, which is in use in Scotland for local elections and which the Government propose for future elections to
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Lord Howell of Guildford: My noble friend has a point. The present closed-list system was introduced in 2002; it was the general principle of PR that came in in 1999. My noble friend is right that the closed system gives considerable weight to parties and that a different system might give greater weight to candidates. For the moment there are no plans to make a change, as I indicated. However, the Question makes it clear that issues lie ahead about changes in voting procedures and constitutional reform, and that it might make sense for a future Parliament, or in future in some other way, for these matters to be reopened and considered.
Lord Grocott: My Lords, is not the clear lesson from the experiment in proportional representation that has been used in the European Parliament for the past 15 years that it leads to a lower turnout, far more spoilt ballots and a far weaker connection between the Members of the European Parliament and their constituents? Is it not time that we listened to the people and the overwhelming vote 12 months ago by a majority of two to one in favour of first past the post and against fancy electoral systems, and recognise that the simple change that we should make in Europe is to scrap the existing system and revert to first past the post?
Lord Howell of Guildford: That is certainly a viewpoint. My query would be whether it is the system that produces the low turnout or the cause. One could make an argument either way. The noble Lord has his views on matters of voting procedure and no doubt we will have many opportunities in future to debate them.
Lord Cormack: My Lords, is not the splendid point made by the noble Lord, Lord Grocott, more than a viewpoint? Did not the British people emphatically reject PR last year, and is it not absurd that either House of the British Parliament should consider continuing this in Europe or, worse still, introducing it for any elections to a second Chamber?
Lord Howell of Guildford: The difficulty with that is that in 2002 there was no rejection of the closed-list system that was introduced. There was agreement by the Government of this country and many other countries in the European Union-in fact, all of them-to go for a PR system of some kind. How that will work in future in relation to this place is quite another debate, one on which obviously there will be strong feelings all round. As far as concerns the STV system in Northern Ireland, or the closed-list system for Europe, they were adopted and signed up to by this country, and if we want to unsign and change the system we will have to have a lively debate about it-as I suspect we will.
Lord Rooker: Would not the European Parliament be more relevant if the people there were Members of the national parliaments of the countries of the EU, rather than the unaccountable people who are there at present?
Lord Howell of Guildford: We are getting into matters about the virtues of the European Parliament on which a number of leading Members, including from the noble Lord's own party, have expressed quite ripe views recently-one of which was that the whole thing should be abolished. Given that we need to spend a lot of time thinking about our own future as an institution, perhaps we should be cautious about going round recommending that others should be abolished.
Lord Kinnock: Is the noble Lord aware that for the past few minutes, he has been listening to some rather elderly politicians, of whom I am also one, who are looking to the future firmly marching backwards? That is not a persuasive position, especially when they neglect the fact that the only international, directly elected Parliament in the world, which represents part of the progress of the European Union and its associated democracies, is a directly accountable Chamber, unique and very effective in its work. Whatever the future of this Chamber, arguments about it will not be enhanced by giving the impression that the European part of the democratic procedures of this country introduce a lack of representation and accountability, which is not true.
Lord Howell of Guildford: I shall steer clear of the ageism aspect of the question. I see exactly what the noble Lord feels with his considerable experience in these matters, but what we have not yet resolved in relation to the great European Parliament is the remoteness worry. The trouble is that when you have great central institutions, accountable although they may be, they are inclined to be a bit remote and further away than our own parliamentary procedures or, indeed, local government. This is an age when people want to have contact-close relations, as the Laeken declaration said-with their representatives to make them accountable. There is still a problem that the European Parliament yet has to address about its remoteness from voters.
Lord Teverson: My Lords, the European Parliament is a great institution, but will the cohort of MEPs who will arrive there in 2014, which my noble friend asked about, still be required to go to two locations, or can they just go to Brussels and greatly increase the reputation of the European Parliament by having only one seat and save the European budget some €200 million?
Lord Howell of Guildford: It has been the view of Her Majesty's Government under successive Governments that this is a very elaborate, expensive and out-of-date arrangement, but unfortunately there is one considerable and powerful country in the European Union that takes a very different view. Until it can be persuaded otherwise, I fear that this double-hatting and double-travelling will have to go on.
Lord Pearson of Rannoch: My Lords, is the European Parliament not merely a democratic fig leaf for the whole ill fated European project because it cannot even propose legislation? So, if we have to have elections to it, should we not keep the existing system which, after all, allowed UKIP to beat Labour and the Liberal Democrats at the most recent election? UKIP came second; therefore it must surely be an excellent system.
Lord Howell of Guildford: I think that slightly echoes the comment I made earlier that one must not associate the outcome of certain elections with the procedure of the election. I do not know whether UKIP would have done better under first past the post or any other system. Who knows?
To ask Her Majesty's Government what arrangements they are making to ensure that there are adequate numbers of police to deal with any consequences for social cohesion and criminality of the withdrawal of civil legal aid for social welfare law cases.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, it is incumbent on government to consider all eventualities when conducting risk assessments. Recognising risks does not mean that they will materialise. We are confident that the police will continue to have the resources and the numbers to carry out their responsibilities.
Lord Campbell-Savours: My Lords: Toxteth, July 1981; Brixton, September 1985; Tottenham, August 2011-have they not all got one thing in common? They all followed severe cuts in family welfare support systems for the most impoverished in society. Have the Government really thought through the consequences of their actions in denying people justice and making people angry?
Lord McNally: I do not believe that the Government are denying people justice. As to the exact correlation to which the noble Lord refers, there will always be studies on these matters, and I am not going to predict whether we have seen the last of social disturbances-it would be very foolish to do so. His Question is about whether there are adequate numbers of police, and in my Answer I have explained that we will continue to have the resources and the number to carry out our responsibilities.
Baroness Hamwee: My Lords, the social welfare law is widely acknowledged to be too difficult for even the most eminent lawyers. Is there not an important argument for ensuring adequate funding for citizens advice bureaux, law centres and so on to deal with social welfare legal issues in the splendid way that we know they have been able to in the past?
Lord McNally: My noble friend brings attention to a matter that has been raised a number of times during the Legal Aid, Sentencing and Punishment of Offenders Bill. She will be well aware that my noble friend the Lord Chancellor has made it clear that he believes that CABs and law centres play an important role. We have already made interim arrangements for funding and, as those who attend the LASPO Committee will know, we are in discussions with the Treasury and other departments, including the Cabinet Office, to see if such funding can be put on a more permanent basis.
Lord Bach: My Lords, the Government's impact assessment for the LASPO Bill accepts that legal aid cuts will lead to "reduced social cohesion" and "increased criminality". Can the Minister remind the House how many Bills go forward when it is thought that their implementation will lead to "reduced social cohesion" and "increased criminality", and why do the Government think that this measure will lead to "increased criminality"?
Lord McNally: My Lords, one problem with treating Parliament as a group of grown-ups is that such exercises will be open to abuse. The Government have never said that this would happen. What the civil servants did, quite properly, in their impact assessment was put forward a range of possibilities. Throughout the Bill-and I presume now that we are moving to Report he will continue on his merry way-the noble Lord has been looking at worst-case scenarios, saying that worst-case scenarios are inevitable and therefore, "Woe is me". That is not what the impact assessment is about. It is about trying to take an intelligent and rational view, but, as I have said before, a view that these are not inevitable. This impact assessment is not an almanac; it is a look at a range of options that could happen. As such, it was a reasonable way of approaching the task ahead.
Baroness McIntosh of Hudnall: My Lords, going back to the question of the risk assessment, does the Minister agree that the purpose of a risk assessment is indeed to look at the worst-case scenario under a number of headings, and to propose what should be done in mitigation should such a scenario eventuate? Can he say what measures the Government have in place should those worst-case scenarios eventuate? There is no point in writing them down if there is not at least some risk that they will.
Lord McNally: That is why we have to take a holistic view of these matters. Much of what is being talked about here will be impacted by the reform and simplification of the welfare system that is being carried out, as well as a whole range of other measures, many of which we will be discussing in the next few hours, that will prevent the worst-case scenario from coming to pass.
Lord Avebury: My Lords, has my noble friend read The Spirit Level, which demonstrates that there is a close correlation between levels of serious criminality and inequalities in society? If so, will the Government put into practice the recommendations of the Equality Trust to secure greater equality in society and thereby diminish not only levels of criminality but many other social evils that follow from high levels of inequality?
Lord McNally: My Lords, the Government get a wide range of advice, and The Spirit Level does make
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Lord Prescott: My Lords, does the Minister accept that the massive cuts in police resources and manpower are to be replaced by privatised security companies that will do the work of constables but with private personnel? Does he accept that this is more than an operational matter to be discussed with ACPO-that it requires discussion with this House and, indeed, with the community? Does he agree that the elections to be held in November for police and crime commissioners were specifically intended to serve as the voice of the community? The Government are rushing forward this decision before November and denying the people a say in this fundamental change in our police forces.
Lord McNally: No, my Lords: the police forces can look at outsourcing various parts of the service but they cannot outsource the fundamental responsibility of the police, which will remain a public service. I note that the noble Lord, Lord Blair, said in today's Guardian that police need to modernise their budgets and reduce unit costs. I am sure that the police commissioner for Hull will have that high in his or her priorities when he or she is elected.
To ask Her Majesty's Government what is their latest assessment of the overall annual value of employers' national insurance contributions; and what proportion of that total is accounted for by the employment of those under 20 years old.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the latest assessment of overall employers' national insurance contributions shows it to be worth £54.2 billion in the tax year 2009-10. Of this total value, 0.4 per cent is attributed to the employment of those under the age of 20.
Lord Knight of Weymouth: My Lords, I thank the Minister for his reply and note that the proportion taken up by those under the age of 20 was 0.4 per cent, which is a very small sum. From a previous Written Answer, I think that that amounts to about £200 million. Does the Minister share my concern about an emerging lost generation, with youth unemployment at record levels of more than 1 million? I do not expect him to support Labour's five-point plan for jobs and growth because of the "not invented here" principle, but given that the bank payroll tax raised £3.46 billion, is not waiving employers' national insurance contributions for those under 20, funded by a bankers' bonus tax,
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Lord Sassoon: My Lords, first, a position in which youth unemployment is more than 1 million is not at all acceptable. While I am very happy to receive Budget submissions from wherever they come from around the House or outside the House, what is important here is that the Government have a clear strategy for dealing with the youth unemployment challenge. Only last November, we introduced the new youth contract, which becomes live on 2 April, with more than £940 million of funding going into it in the spending round. This youth contract will enable up to 500,000 young people to get into employment and education. The Government are actively on the case.
Lord Newby: My Lords, the Minister will be aware that in the budgetary provisions already made for the forthcoming tax year, some £300 million has been made available by way of national insurance holidays for new companies employing new people. It is clear from experience to date that the Budget level will not be reached. Could that money be redirected beyond new companies employing additional staff either to existing small businesses employing additional staff or specifically to small businesses employing young people who are currently unemployed?
Lord Sassoon: Again, I am happy to hear the thoughts of my noble friend about what might be done. The national insurance holiday, which is estimated to be already supporting some 40,000 jobs in new firms, is only one part of the package to help small businesses: the reduction of the corporation tax rate, the extension of business rate relief for a further six months from 1 October this year onwards, the coming national loan guarantee scheme, as well as what the Government did with the above-indexation increase in national insurance thresholds. This is a significant package of which the holiday is only one element.
Lord Davies of Oldham: My Lords, the Chancellor has always claimed that the last Budget was not a tax-raising Budget, but I am sure the Minister will acknowledge that national insurance was raised. How much is that going to cost the average worker up to the end of this Parliament?
Lord Sassoon: My Lords, the subject of the Question is employers' national insurance. By introducing the £21 a week above-indexation rise in the threshold, the Government benefited all employers by £3 billion a year through that very significant increase. Job creation in the private sector is in many ways very remarkable. Since the election over 500,000 new jobs have been created in the private sector, thus increasing employment, and only today Tesco announced 20,000-net new jobs in the UK over the next two years. We really must not run down what the private sector is doing to create new and sustainable jobs.
Lord Roberts of Llandudno: My Lords, there are many reasons for youth unemployment, one of which
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Lord Sassoon: I am grateful to my noble friend because, of course, when Labour came into office in 1997 the number of unemployed and inactive youngsters was around 1.4 million, and that is where it remains. My noble friend is quite right that there is a significant structural issue, which we have inherited, and that is why schemes such as the youth contract are so important in order to get our young people into sustained and sustainable employment.
That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Tuesday 6 March to allow the Supply and Appropriation (Anticipation and Adjustments) Bill to be taken through all its remaining stages.
Lord Howarth of Newport: My Lords, before the House receives this Report, may we have an assurance from the Leader of the House that we will not be wasting our time as we scrutinise the Bill and offer our advice to the House of Commons by way of amendment? Will he confirm that there is no necessity for Ministers to advise the House of Commons to claim financial privilege in relation to Lords amendments that may have public expenditure implications, which in the case of this Bill would be modest at the most? Will he assure us that this time the Government will not hide behind 17th century resolutions of the House of Commons to prevent the House of Lords in the 21st century from doing its proper job as the revising Chamber of a bicameral Parliament?
The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I laid out the position at some length on Valentine's Day. The statement is recorded in Hansard and can be read by the noble Lord. I was at pains to point out that it is not a decision of the Government but a decision of the House of Commons, and the Speaker of the House of Commons taking the advice of his Clerks, which ultimately decides whether or not to engage in financial privilege. The noble Lord asked me whether he would be wasting his time. I could not possibly say whether he would be wasting his time or not, but if the House chooses to amend this Bill in substantial financial ways, as with any other Bill I would have thought, from a clear reading of my statement and looking at the experience of the relationship between the two Houses over many years, that it is likely to engage financial privilege.
1: Clause 1, page 1, line 5, leave out from "secure" to end of line 6 and insert "(within the resources made available and in accordance with this Part) that individuals have access to legal services that effectively meet their needs"
Amendment 1, in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton, seeks to ensure that the Bill contains a statement of this uncontroversial and fundamental purpose of legal aid; that is, the promotion of access to justice. The wording of Amendment 1 is based on the existing Section 4(1) of the Access to Justice Act 1999. It is drafted so as to recognise, like that existing provision, that the duty to provide access to services to meet needs is not absolute. It is a duty defined of course by reference to the financial resources which are made available. The amendment does not impose an independent duty which trumps the specific contents of Part 1, which we are about to debate. On the contrary, it expressly states,
So the only relevant question is whether it is appropriate to include in the Bill a statement of legislative purpose at the outset. Whatever views we take-and different views will be expressed-on the need to cut back on
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Under the Bill, the duties of the Legal Services Commission will be transferred to the director, working within the department. It is of considerable value that the director, the Justice Secretary and all those who will be associated with legal aid, whether as lawyers, clients or judges, continue to recognise that the purpose of legal aid is the promotion of access to justice. When the economy improves, we can all then reflect on whether the legislation should be amended the better to promote this purpose of access to justice.
This amendment states a principle which is recognised by the Justice Secretary himself. It is in terms which have been included in the legal aid statutes for many years. It does not require any further expenditure. An amendment along these lines was recommended by your Lordships' Constitution Committee, of which I am a member. It was, if I may respectfully say so, very unclear from the Minister's response in Committee why the Government were resisting it.
I am very grateful to the Minister and his officials for the patience and courtesy they showed me last week in discussing these issues. I regret that I was unable to persuade the Minister of the merits of this amendment, but I hope that other noble Lords on all sides of the House are persuaded that this amendment would improve the Bill and would do no damage whatever to the Government's desire to reduce public expenditure on legal aid. I beg to move.
Lord Faulks: I support the amendment. When it was debated in Committee, the Minister said that he would reflect on the observations of many noble Lords across the House who had contributed to the debate. It was one of many amendments that were considered by the Minister and he reassured the House on a number of occasions that he was listening.
In case I do not get an opportunity in subsequent debates, perhaps I may say now that I am extremely grateful to the Minister and his officials for their constructive approach to some of the issues and in particular one that concerned me; namely, the lack of legal aid for the victims of obstetric injuries-children with brain damage. The Government have responded and put down an amendment that we will debate in due course. However, that approach has not been reflected in his responses to this amendment. As the noble Lord, Lord Pannick, told the House, the amendment reflects the concerns of the Constitution Committee of your Lordships' House, but it contains an important modification by reference specifically to the availability of resources.
I am sympathetic to much but not everything that is in this Bill. I certainly share the Government's aim to get rid of the worst excesses of the current litigation system and I understand the need for economies in the legal aid system. Nothing about this amendment conflicts with any of those aims. It will not in fact cost the Government anything. Why then is it important?
I consider that it affects the integrity of the Bill as a whole. If some areas of litigation are to fall outside the scope of legal aid, let us none the less ensure that the Bill retains the principle that is represented by this amendment; a principle that has, as your Lordships have heard, a recent statutory precedent. We are concerned about access to justice, which I hope I am not hopelessly romantic in regarding as a fundamental part of what it means to be British. I am uncomfortable with a Bill that declines to recognise this in the form of the amendment that has been put forward or in some similar wording. If he does not accept the amendment, I look forward to hearing the Minister explaining why he will not do so.
Lord Hart of Chilton: My Lords, my name is on this amendment. I support it for the reasons so admirably given by the noble Lord, Lord Pannick. Like him, I am a member of your Lordships' Select Committee on the Constitution, which identified the importance of a statement of constitutional principle relating to access to justice.
As the noble Lord, Lord Pannick, has pointed out, the wording of the amendment is closely based on Section 4(1) of the Access to Justice Act 1999. Throughout the nine years that I saw those provisions in operation, budgetary restraint urged by the Treasury was always present because in those days, health and education were regarded as of higher priority. Nevertheless, legal aid was regarded as an essential element to access to justice and that principle constantly focused and concentrated the mind. The amendment seeks to do the same. It recognises budgetary restraint. It does not require a blank cheque much as some would wish it. It is moderate in tone and therefore realistic, but it enshrines an important constitutional principle that will overarch and permeate the whole of Part 1 of the Bill.
Lord Carlile of Berriew: My Lords, like other noble Lords who have spoken, I remain in support of the principle behind this amendment. We are discussing the question of fairness in the distribution of legal aid and the availability of justice to members of the public. Like the noble Lord, Lord Faulks, I have campaigned in relation to clinical negligence-particularly perinatal negligence. Like him, I am grateful for the very realistic approach taken by Ministers and the clear indication and undertaking to make a concession on that matter.
However, one issue that concerns me greatly is the matters that will be debated under Amendments 8, 9 and 10-the question of scoping in and scoping out. I would be perfectly willing to see this amendment go by had we a commitment from the Government that scoping in would be added to the Bill. Had that commitment been made, I would have seen some evidence of overall fairness in the approach to legal aid being placed clearly in the Bill.
Like the issue we are currently debating, the issue of scoping in has been trailed in debate time and time
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The Lord Bishop of Exeter: My Lords, last week I was asked to give a lecture on perspectives on social justice from the Old Testament. We found ourselves deep in the prophet Amos. If your Lordships are looking for some edifying and deeply challenging Lenten reading, I commend this ancient Hebrew text to you. At the heart of Amos is the same concern with access to justice. He constantly attacks a system whereby the rich can buy justice and the poor are denied it. We find him thundering against those who would turn aside the needy at the gates of justice. Access to social justice runs, like lettering through a rock, through not only Amos but the whole of the Old Testament. I suggest that it is also at the heart of any civilised society. I would not expect the Government in general or the Minister to dissent from that principle, but without this amendment or something like it that principle is in danger of being fundamentally undermined and flawed.
Among the many privileges of my life is to be the president of the local Exeter CAB. I know how much CABs and others working with the poorest of the poor fear the consequences of the removal of access to legal aid and justice for those who are very poor. I heard the Minister earlier this afternoon stand at the Dispatch Box and say, "Well, the danger here is that we begin to think about worst-case scenarios". If I have learnt one thing from my time in this Chamber, it is that one of the functions of the law-and of this House-is to look forward precisely to worst-case scenarios. My fear is that the Bill as it stands is cast around a best-case scenario. In its desire to tackle, properly, abuses within the system and deal with the unnecessary, escalating costs associated with, for example, the no-win no-fee industry, there is a danger that huge swathes of activity hitherto amenable to legal aid are being removed from those who need that access.
As I say, the aim of the law and of a House like this is to foresee worst-case scenarios and see ahead to the elephant traps. Without such an assurance as is contained in this amendment, I fear that such elephant traps could include not only the denial of justice to the poor but, for example, people acting as plaintiffs on their own account in a court of law, inefficiently taking up more time, leading to more appeals and adding to further legal costs. Is there not a danger that those denied access to justice might even begin to take the law into their own hands?
This amendment is a very simple one. It does not undermine the heart of the Bill at all. It ensures that individuals, rich and poor alike, have access to legal services that effectively meet their real needs.
Baroness Mallalieu: At Second Reading, I supported a very similar amendment, and I would like to support this one today. This is the single most important
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This is major legislation to reform the legal aid system, and the least that the Government can do is to incorporate within this major legislation the affirmation of principle that the amendment in the name of the noble Lord, Lord Pannick, calls for. His formulation is a modest one by comparison to the formulation that the Constitution Committee of your Lordships' House recommended should be incorporated, which would have laid upon the Lord Chancellor an absolute duty to secure effective access to justice. At a time when our society is particularly stressed by the rigours of recession and reductions in spending on public services, as well as by what we on this side of the House take to be a very harsh prospective reduction in benefits, it is particularly important that the Government should do what they can to reassure members of our society that they are committed to justice. The affirmation of principle that is called for in this amendment is for that reason the more necessary. So I hope very much that the Minister, having listened to the powerful arguments deployed on all sides of the House, will concede that this is indeed the right thing to do.
Lord Newton of Braintree: My Lords, I apologise for my slowness. I start by saying that I am so far the only person who has spoken who is not a lawyer or bishop. I would claim with the right reverend Prelate to be a humble seeker after truth. I am not sure what I would claim with the lawyers. But I do know that I am racked with guilt about the noble Lord, Lord Pannick, because on the last occasion that he brought this up I indicated that I was not with him. Indeed, last week when he asked me whether I was going to vote on an amendment and I said that I was going to vote with the Government he wisely ignored my advice and voted against it, which is probably what I should have done anyway. However, I find myself now on Report much more inclined to support the noble Lord, both because of what he said today and because-dare I say to my noble friend on the Front Bench; I have already warned him that I may be a bit troublesome
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I do not doubt that the coalition Government, whom I strongly support in general terms, including the Prime Minister and the Deputy Prime Minister, are committed to freedom, openness, transparency, justice and fairness. The coalition agreement is littered with the rhetoric of all those things and I think they meant it and still mean it, although I find it difficult to see the connection between some of the proposals in the Bill and those declarations, particularly about freedom and justice. The Minister referred jocularly at Question Time to the Ministry of Justice's motto being, "We're the Ministry of Justice, here to help". Frankly, you might query that when you have looked at the provisions of the Bill. The noble Lord, Lord Pannick, also referred to the Justice Secretary's broad declarations on this. I could make a lot of rather tendentious points particularly in the area of administrative justice, to which we will come later with an amendment on which my name stands, but there are enough questions in all this to make me wonder much more about supporting this amendment, subject to what my noble friend may say.
It appears that the Minister is going to refer, as he did at Question Time, to some of the government amendments that have been put down in the field of clinical negligence in relation to obstetrics cases, and there are one or two other things on which there are some good concessions. I welcome that, but those concessions themselves call into question how far the fairness and justice of these proposals had been thought through when they came forward. We need some more concessions that reflect the full merits of the principle reflected in this amendment and of the rhetoric of the coalition, and I hope that we shall see some move in that direction when my noble friend replies in a few minutes' time.
Lord Alton of Liverpool: My Lords, it is always a pleasure to follow the noble Lord, Lord Newton of Braintree. The House will know, of course, that he has held high ministerial office, having been a Cabinet Minister and a Secretary of State, but also as a former Leader of the House of Commons he brings distinguished experience to your Lordships' House. The Minister should reflect on the wisdom of what the noble Lord has just said.
While we all accept that legislation is not like semaphore-it is not just about sending signals-there is grave public anxiety. The right reverend Prelate the Bishop of Exeter expressed the concern of groups such as Citizens Advice about the load that will be placed on their shoulders. The noble Lord, Lord Carlile of Berriew, expressed the concerns of groups such as claimants. He and I were privileged at the very outset of the proceedings of the Bill to meet a lady who is bringing up a brain-damaged child and who told us in
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It is for that reason that I support my noble friend's amendment today. As he has rightly said, it will not cost the Exchequer money but it sends a signal and lays down an important principle. It invites us to consider again the purpose of legal aid, which, when Hartley Shawcross introduced it in 1948, was one of the principles of the founding of the welfare state. It also invites us, especially those of us who are not lawyers, to consider the importance of access to justice for many people throughout this country. As the noble Lord, Lord Hart of Chilton, said, it is moderate and realistic. Access to justice is not a service or a product but an intrinsic right for every citizen. Dr EJ Cohn made the case best when he said:
"Just as the modern State tries to protect the poorer classes against the common dangers of life ... so it should protect them when legal difficulties arise. Indeed, the case for ... protection is stronger than the case for any other form of protection. The State is not responsible for ... old age or economic crises. But the State is responsible for the law".
This is not simply a moral duty but a legal one. As the European Court of Human Rights has held, an overly restrictive legal aid system can be a violation of Article 6 if it means that there is a significant inequality of arms and the individual is unable to mount an effective defence or claim. It is in this light that the first line of the Bill should be construed-namely, in the light of the important moral and legal duty under which the Lord Chancellor would be placed.
The beginning of any piece of legislation will often articulate the principles driving it. This Bill is no different. The noble Baroness, Lady Mallalieu, was right to remind us of that. It is the overriding duty of the Lord Chancellor to provide effective legal assistance to those in need, which should be the backdrop against which all other clauses of the Bill are construed. It is therefore crucial that the first clause should provide clarity as to what that duty is, as well as on its more general nature. As presently construed, Clause 1 lacks any clarity of principle. It does not focus on the needs of the citizen or on the fact that such assistance must be effective. Instead, it presents the Lord Chancellor's duty as being extremely narrow, focusing simply on enacting the Bill, rather than on ensuring any greater principles.
In contrast, my noble friend's amendment seeks to remedy that fault by focusing the nature of the Lord Chancellor's duty on being, first, effective and, secondly, according to one's needs. The principles of effectiveness and provision according to need go to the heart of what is meant by providing proper legal assistance. It is critical that all assistance provided must be effective-what is the point otherwise? For it to be otherwise would be likely to hinder an individual's access to the courts as well as likely resulting in a waste of money. As to need, it is important that legal aid goes to those who need it and those people only. Indeed, that is the whole point of the scheme. It is therefore important to state that unequivocally and clearly at the beginning of the Bill. Should the Lord Chancellor wish to demonstrate that he is effecting his duty properly, that duty is then stated in the Bill.
However, it is also important to note that the amendment does not place an undue burden on the Lord Chancellor. Nor does it curtail much of what the Bill strives to achieve. The Minister might be right to worry that the Lord Chancellor would be placed under too heavy a burden-a herculean task that would need a huge amount of both time and resources. However, he need not harbour such concerns unduly. My noble friend's amendment clearly states that such a duty would be restricted to the provisions in the Bill. The amendment would simply recognise that the duty of a Lord Chancellor is to provide legal assistance, as provided in the later clauses of the Bill, but that he must do so in a manner that is both effective and according to need. This is entirely reasonable. If the Government resist the amendment, alarm bells should ring about their apparent covert intentions, and many suspicions about the potential ramifications of the Bill for access to justice will be confirmed. The amendment might go some way to assuage those misgivings. For those reasons, I am very happy to support my noble friend's amendment.
Lord Clinton-Davis: The amendment sums up precisely why so many of us entered the law in the first place. I will not take up much time-only a few seconds. Essentially, why the Minister is resisting this amendment is beyond me. It goes to the very heart of why we join the legal profession as solicitors and barristers in the first place. I see him shaking his head but I do not know why. The amendment summarises precisely why we join the legal profession and, for that reason, I support it.
Baroness Butler-Sloss: My Lords, I am sorry that yet another lawyer is speaking, but I want to make a very brief point. In 1215, King John was persuaded to put his name to the Magna Carta, which had a very clear definition of access to justice. We have now, in 2012, nearly reached another centenary of Magna Carta. It would be helpful if current legislation made the definition equally clear. The provision, as it stands in Clause 1, lacks the clarity of the amendment in the name of the noble Lord, Lord Pannick. I cannot understand why, in these straitened times, the Government think that this measure will cost them any more money. It would act as a beacon and a pointer to what should be done in less straitened times when money is available to make this provision. I support the amendment.
Lord Thomas of Gresford: Perhaps that is putting it a little too high. However, ever since Magna Carta, access to justice has been a fundamental constitutional principle, and the Bill has nothing to do with changing that principle. My objection to the amendment is simply that it is completely otiose and unnecessary to have statements of principle that have been with us since 1215 restated in this way. The noble Lord, Lord Pannick, said that he does not intend to trump Part 1 and asked whether a statement of legislative purpose
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I have been involved in the legal profession for nearly 50 years and in my experience the greatest change to legal aid occurred when the previous Government abolished it for personal injury cases, and against the principles of maintenance and champerty, about which I have bored your Lordships many times, decided to introduce conditional fee agreements with associated insurance. The Bill follows that line by emphasising the ability of litigants to take what is now a well used way-I accept that-of obtaining access to justice. Nothing in the Bill stops people bringing actions. Legal aid may not be available but the Bill makes it clear that there are other ways of approaching the court.
The success fees introduced in 1999, which have no relation whatever to the risk solicitors run in taking on no-win no-fee cases, have increased, along with the dreadful increase in the size of ATE premiums. When the noble and learned Lord, Lord Irvine of Lairg, who I am pleased to see in his place, introduced the concept in 1999, he was talking about ATE insurance premiums of £100 or £300-I have seen that in Hansard-as opposed to today's £50,000, £80,000 or £100,000 premiums. The cost of litigation in this country has escalated to a disgraceful level. The Bill increases access to justice by squeezing out of the system unnecessary costs and expense, which have gone to lawyers and insurance companies. We will debate in detail the respective provisions and where we can do better. However, it must be recognised that even at this stage the Government have made significant and substantial concessions to improve various aspects of the Bill. I am sure that they will continue to do so in responding to some of the amendments for which we on these Benches will argue. Therefore, I regard this amendment as a statement not of principle but of unnecessary verbosity that should not enter the statute.
Lord Bach: My Lords, there is very little left for me to say from the opposition Front Bench, except that we are, as we were in Committee, completely in favour of the amendment of the noble Lord, Lord Pannick. It adds considerably to the Bill and is a very important statement of principle that should be there.
Lord Bach: Not quite in the same terms. As I understood it, the noble Lord and some others in
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"I entirely agree. I think that the Government are making a mistake in welfare law and that cutting legal advice and assistance for people at the bottom end of society will cause more problems than it solves; it will not achieve the savings that the Government think it will".-[Official Report, 20/12/11; col. 1708.]
Lord Bach: Indeed-I fully concede that; but I have to say that I do not concede the point that I am about to make, which is that if the noble Lord were in opposition and a Bill such as this was brought in by a Government whose party was not his party, he would oppose the Bill with all the great force and passion that he could and support the amendment 100 per cent.
Some noble Lords in Committee thought that the amendment did not go far enough and did not follow the words of the Constitution Committee. This is a very modest amendment that could have gone further. We think that it catches the right note, does not try to go further than it should and is very much in the context of Part 1. If it is the position of some noble Lords that the amendment does not go far enough, that is surely an argument in the context of this debate to vote for the amendment, because its position is closer to their position than if they were against it. If the view is that the Bill should reflect the Constitution Committee's opinion and nothing else, this is certainly the amendment to vote for.
There is nothing wrong at all with this statement of principle occurring at the start of a major Bill that if passed in its present form will transform the legal aid system, particularly as it affects the very poorest, who rely on civil justice in order to get their rights. It is therefore important that we set off in the right way. The right reverend Prelate the Bishop of Exeter-if I may say so, with respect-caught the mood absolutely correctly when he talked about the function of the law, which is to look at worst-case scenarios. He is absolutely right; the Bill does not do that. It takes a very rosy view of what will happen when, for example, there is no legal aid for social welfare law. What will happen then? I know that we will debate that in the days ahead, but it is a matter that we should consider in relation to the amendment.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, let me begin with the comments of the right reverend Prelate the Bishop of Exeter. The worst-case scenario for me would be if this Government lost control of the economy and were forced by circumstances to come back with even more draconian
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I recall saying that I would reflect on what was said in Committee. I have done so, and so has my right honourable friend the Secretary of State. I must say that the more I have reflected on it, the less convinced I have been by the amendment proposed by the noble Lord, Lord Pannick. Many speeches-although I do not accuse the noble Lord, Lord Hart, of this-have wandered very far in the direction of seeing access to justice as a concept of legal aid blank cheques signed by the taxpayer. I know that the noble Lord, Lord Pannick, will say, "Ah, but look at my amendment. See the limitations that I recognise". Once you have said that there are limits to expenditure, some of the high-flown phrases used by the noble Lord, Lord Clinton-Davis, or the noble Baroness, Lady Mallalieu, have to be run up against that hard decision. You are drawing lines. You are not giving everyone access to justice financed by the taxpayer. We are trying today to see, as my noble friend Lord Thomas said, whether the amendment adds anything to our debate.
Amendment 1 relates to the supply of and demand for legal services. I accept that its purpose is very similar to the purpose for community legal services in Section 4(1) of the Access to Justice Act 1999. I also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1.
However, against the backdrop of the Bill, we believe that Amendment 1 is unnecessary and inappropriate in the context of Part 1. The provision in the Access to Justice Act relates to how civil legal aid operates on an exclusionary basis. By that I mean that it specifies what services cannot be funded under civil legal aid and leaves open the question of services that might be funded. In that context, a provision such as that in Section 4(1) of that Act, which provides a basis for determining which services might be funded, is a useful and appropriate addition where those services are undefined.
However, in the context of the Bill, the amendment is not appropriate. The provisions of Part 1 that relate to the general scope of civil legal aid are drafted on an inclusionary basis, where the services capable of being funded under civil legal aid are detailed explicitly in Schedule 1. As such, there is no question as to what services might be funded; they are in the Bill for all to see. Consequently, the amendment based on Section 4(1) of the Access to Justice Act is not appropriate.
That tension-some would say contradiction-is underlined by the amendment itself, the intention of which is to make the provision subject to the wider provisions of Part 1, which of course includes Schedule 1 and its description of the range of services to be
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Outside those technical and definitional issues, the debate has raised questions about whether there should be a duty on the Lord Chancellor to secure access to justice. I shall briefly explain why we think that that is also unnecessary in the context of the Bill. The noble Lord, Lord Pannick, quoted the Guardian article of my right honourable friend. I repeat again that the Government consider that the rule of law and access to justice are a fundamental part of a properly functioning democracy and an important element in our constitutional balance.
It is true that the legal aid reforms are aimed in part at achieving savings. In our view, the current legal aid system is unaffordable, has expanded far beyond its original scope and is not sustainable in its present form-as I think was recognised by the Labour Party when it referred to cuts in legal aid in its election manifesto. However, the reforms are also aimed at encouraging people to use non-adversarial solutions to resolve their problems where appropriate and to speed up and simplify court processes where not. As such, we consider that our reforms should strengthen the rule of law by making the justice system more effective.
The Government believe that financial assistance from the state in accessing the courts is justified in certain areas, and that is why we have retained categories of cases within the scope of civil legal aid. I noticed that the noble Lord said that there was no social welfare spending on legal aid but that is simply not true, as he knows. We have also made provision for legal aid to be granted in the limited circumstances justifying exceptional funding under Clause 9. The exceptional funding scheme will ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights, as well as rights to legal aid that are directly enforceable under European Union law.
The Government do not dispute that it is a principle of law that every citizen has an unimpeded right of access to a court. However, they do not accept the proposition that there is a constitutional right to legal aid in all circumstances and at all times. Once that is conceded, the debate is about how and where we draw the line. The Government consider that the common law right, as mentioned by my noble friend Lord Thomas, of unimpeded access to a court of law means having the assistance of the court to assert legal rights and obtain remedies to which one is entitled, having the right to challenge a decision in the courts if one wishes to do so, and not being prevented from issuing court proceedings because of an inability to pay the court fee.
The noble Lord, Lord Alton, and others seemed to be moving very close to arguing for a legal aid scheme at the point of need-a kind of National Health Service for the legal profession. I think I have mentioned before that I talked to Jeremy Hutchison-Lord Hutchison-who is on leave of absence from this House and is now in his 90s. He was one of the lawyers who made up the legal aid scheme. He said, "Our
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Lord Clinton-Davis: Of course. The whole legal aid system is based on that; you have to conform with certain priorities. However, I repeat that the basic principle that brought many of us into the profession in the first place was fairness and justice, and that is being denied.
Lord McNally: It is not being denied; it is still there. However, in very difficult economic circumstances, we are making tough judgments and drawing lines, as successive Governments have had to do about where legal aid applies and where it does not.
Lord McNally: The noble Lord will probably continue for the next five days to make his debating points, but we are not depriving them and he well knows it. As the Bill proceeds we will make further comments about help on advice.
The Government also consider that case law does not establish that in order to have access to a court, it is a necessary precondition that an individual has received legal advice. A common law right that requires access to legal advice and beyond that to state-funded legal advice and assistance, would also go beyond the approach laid down by the European Court of Human Rights in its case law on Article 6 of the ECHR.
The Government considered very carefully from first principles which cases should continue to attract publicly funded legal advice and representation in the light of the financial constraints that I have mentioned. As reflected in the Bill, the Government reached the view that exceptional funding under Clause 9 of the Bill should be limited to ensuring the protection of an individual's rights to legal aid under the ECHR as well as those rights to legal aid that are directly enforceable under EU law.
In addition to this the Lord Chancellor would be required in carrying out his functions to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor's functions as a Minister of the Crown and do not
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We have also been clear in the response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and put in place a procurement strategy that reflects the demands and requirements of the new legal aid market.
In light of the practical barriers in operating this amendment and the fact that the more principle-based concerns are addressed in the Bill, I would urge the noble Lord to withdraw the amendment. Many speeches today have gone far beyond what legal aid means in the scope of legal aid under successive Governments. The Bill is honest about what we can do and, as such, it deserves the support of this House.
Lord Campbell of Alloway: Perhaps I may ask my noble friend a question, as I am rather confused. To implement this question as put surely you need to have an elastic available resource-you need something that from time to time meets the circumstances. Is that not right? If you look at Clauses 2 and 4, you will see that they are all involved. It is all a question of legal aid and legal resources. I am not trying to be difficult but I just do not quite understand how it will be paid for.
Lord McNally: As we continue to point out, it is being paid for by taxpayers via my right honourable friend the Chancellor of the Exchequer. However, my noble friend does put a point. This amendment creates a warm glow. It is a general declaration which the noble Lord assures us will not really affect the workings of the Bill. I am telling him that the Bill, in its structure, covers all the important commitments that he seeks without misleading the public or Parliament about the very real constraints that we and previous Governments have had to put on the limits of legal aid.
Lord Pannick: My Lords, I am grateful to all noble Lords who spoke in this important debate. I am also grateful to the Minister for his thoughtful response. However, I am as puzzled now as I was when moving the amendment as to why the Government are resisting it. I am puzzled in particular because the Minister very helpfully repeated what was stated by the Justice Secretary in his Guardian article: namely, that the Government are committed to access to justice as,
The Minister spoke about the need for the Government to take tough economic decisions. Many noble Lords will be very sympathetic to him on that. We will debate very contentious issues as we go through Report. However, I say to noble Lords that the point has no relevance to this amendment, which expressly inserts,
This is not a partisan amendment. The case for it-and indeed the case against it-does not depend on the
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I will make two further points. The Minister made the point that there is no constitutional right of access to legal aid in all circumstances. Of course, he is right. Access to legal aid has always been subject to conditions, criteria and limitations. We will come on to debate whether there should be further restrictions, conditions, criteria and limitations. However, a provision in the terms that I propose has always been part of legal aid legislation, even though it has never in absolute terms provided legal aid in all circumstances.
Lord McNally: Would the noble Lord not concede that the difference between this Bill and previous Bills is that previous Bills have been open-ended, so the kind of commitment that he talked about was reasonable, whereas Schedule 1 to this Bill specifies what we will do? He wants to insert a warm glow in the Bill, but putting warm glows into Bills is not good.
Lord Pannick: The Minister may disagree, but I take the view that because the Government now wish to specify areas where legal aid will continue to be available, it is all the more important that the statement of constitutional principle about access to justice continues to be part of the legislation, subject to available resources and the provisions of this part.
The noble Lord, Lord Thomas of Gresford, said that the statement of purpose was unnecessary since access to justice was not being abolished. He also suggested that the amendment contained unnecessary verbosity-a surprising allegation about an amendment that is 23 words long. I take the view that when Parliament redefines the scope of legal aid, and does so in provisions that will inevitably be controversial, it is vital that it should restate its recognition of this important constitutional principle. I hope that noble Lords on all sides of the House will feel able to support the amendment, which does no violence whatever to the Government's general objectives in relation to the Bill. I wish to test the opinion of the House.
"( ) In exercising the duty under subsection (1), the Lord Chancellor must ensure that victims of domestic violence are able to access civil legal services in accordance with the financial eligibility criteria in section 20 (financial resources)."
Baroness Scotland of Asthal: My Lords, I declare my interest as chair of the All-Party Parliamentary Group on Domestic and Sexual Violence, and as founder and patron of the Corporate Alliance Against Domestic Violence and the Global Foundation for the Elimination of Domestic Violence. I shall speak to my Amendments 2, 41, 43 and 44 in this group, which deal with access to justice for victims of domestic violence. I am joined in these amendments by the noble and learned Baroness, Lady Butler-Sloss, who, as your Lordships will know, is the former president of the
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Amendment 2 creates a positive duty on the Lord Chancellor to ensure that legal aid is available to domestic violence victims in accordance with their financial eligibility where they are engaged in domestic violence-related cases, such as contact or property disputes. Amendment 41 seeks to preserve the definition of abuse currently used across governmental and other agencies and is the definition adopted by the Association of Chief Police Officers.
Amendment 43 seeks to ensure that the evidential criteria required to prove that domestic violence has occurred protects all victims of domestic violence. It reflects the source of evidence currently accepted by the UK Border Agency. Last but not least, Amendment 44 ensures that no arbitrary time limit operates in relation to any evidence supporting an application for legal services. These are, in essence, the amendments laid before the House in Committee and the Minister is, I am sure, only too familiar with them.
The changes proposed by the Government have generated a great deal of anxiety and concern across the country, which has been irrespective of party and geographical location. As your Lordships know only too well, in the United Kingdom, every week two women die as a result of domestic violence. Victims of domestic violence make up one in four women and one in six men in the United Kingdom. Every week, 230 victims need help to leave their abusive relationships. This Government made a commitment in the spring of last year to end violence against women and to set out a cross-governmental strategy for preventing and responding to violence against women. The Justice Minister in the other place, Jonathan Djanogly, said:
I hope the Minister, who said in Committee that he would listen carefully to all that was said on this topic, will be able to assure us now that he is in a position to accept our amendments. That would give voice to the commitments made by the coalition Government in the spring of 2011.
Even now I can assure the Minister that I am quite happy to give way and allow him to apply balm to anxious souls across the country who are waiting for this relief. Particularly bearing in mind the result of the last vote, if he wishes to seize this opportunity, I would be only too happy to sit down. However, I do not see him jumping to his feet and therefore I must take it that is he not going to do so. If that is the case, perhaps I may say how disappointed I and a number of others across the country will be. That is because the provisions in this Bill, if accepted along with the 12-month time limit, will cause great damage. We know from a recent survey by Rights of Women that 54.4 per cent of victims today would not get through
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I should say straight away that I welcome the Government's recent acceptance that the definition of domestic violence set out in the Bill must change. The revised version is much closer to the existing definition-tried and tested by the Association of Chief Police Officers over a number of years and by all those who operate within the justice system and who have the burden of dealing with domestic violence cases. We welcome the Government's change of heart. But I have to tell the Minister that, regrettably, the definition is still too narrow in that it differs from the ACPO definition and from my Amendment 41 because it still excludes "any incident" of domestic violence. That will have a material impact on the ability of a large number of victims to access legal aid. Unless the evidential gateway is widened, the Government's concession will have little meaning or effect. However, in the light of the concession in relation to the definition, I will focus my remarks on the third and fourth of my amendments.
If the Government's proposals succeed, it will mean that family legal aid will be allowed only where domestic violence is shown by the existence of an injunction or criminal conviction, if the victim is subject to a MARAC-a multi-agency risk assessment conference-which basically means that they are at risk of grievous bodily harm or death, or where the violence has been found as a fact in the family courts. Further, most of this evidence has to be obtained in the past 12 months. The proposed narrow evidential gateway appears to fly in the face of the Government's commitment and, indeed, in the face of what I believe to have been a universally agreed understanding about the nature and extent of domestic violence in our country, as well as its impact on victims whether they are men, women or children.
The simple truth is that if the current proposal is brought into force, genuine victims are going to be excluded from obtaining the help and support they desperately need to bring themselves and their children into a place of safety. In its current proposed terms, a police officer's statement that he or she believes that domestic violence is present will not be enough evidence to gain the victim legal aid. Nor will a medical certificate from a general practitioner or confirmation from social services be enough. Indeed, a victim whose abuser has admitted to domestic violence but has avoided a criminal conviction by agreeing to attend a rehabilitation programme or make an undertaking will not be able to access legal aid. We know that in the case of 99 per cent of those who participated in the Rights of Women survey at least one incident of domestic violence had been reported to the police or the police had attended an incident involving domestic violence, yet only 8.3 per cent of those surveyed would be able to prove that they had ongoing criminal proceedings in the previous 12 months-the test that the Government now wish to apply. There is no suggestion that those women were anything other than genuine victims of domestic violence. A wide range of statutory and voluntary sector professionals and agencies was reported to have been
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I know why the Government seek to impose this 12-month timeframe: they seek to restrict the amount of money being spent in this regard. There has even been a suggestion that bona fide claims may not be pursued and that people might make claims fallaciously. There is no evidence that these provisions have ever been misused. Indeed, the terms of the current Government's criteria for the evidential gateway are very similar to those which we adopted in 1999, when we were looking at applications for indefinite leave to remain where domestic violence was alleged. That definition proved simply to be too narrow. We changed it in 2002 in response to great discussion, debate and research, and then had to change it again in November 2004 to that which we now have and which is accepted by the UK Border Agency. Reaching that set of criteria reflected the reality of the lives of sufferers of domestic violence and was a huge achievement for the United Kingdom and the result of hard work by everybody.
The forms of evidence that were eventually accepted were by no means as wide as many organisations would have liked. We arrived at a medium level that was considered to be fair. It was sound and has been proven to succeed in practice and provide an acceptable level of protection both for the victim and for the authorities. There is no suggestion that that definition has not worked. By accepting the provisions proposed in this Bill we would, most reprehensibly, be at risk of turning the clock back by at least a decade and placing a number of victims at unacceptable risk. The amendments would preserve the position that we have now in terms of assisting victims. Our Amendment 43 harmonises the evidential gateway in the Bill in a way that we believe is proper and in accordance with that best practice.
Domestic abuse is a slow-burning process. We have universally accepted research which shows that false allegations are extremely rare, that victims remain in an abusive relationship for an average of five and a half years before coming forward and that the majority of respondents typically reported abuse only after being assaulted between three to five times. There is often emotional, financial, and sometimes physical pressure to stay in a relationship and it takes a lot of courage for a woman to separate. Research has shown that the incidence of domestic violence is chronically underreported. I was pleased that the noble Lord, Lord Macdonald, made that point in Committee in relation to the Bar's finding that 16 per cent of victims come forward to report it anywhere at all.
All of us who have worked in this area have seen the graphic examples of victims' lives laid out before us. The Minister knows only too well the pain of which I speak in relation to domestic violence victims. We have a chance to retain the protection that has been proven to be merited over a number of years, and I seriously ask the Minister to consider not going backwards.
The Minister will also know that this is a particular issue in relation to black and minority-ethnic individuals. Southall Black Sisters, which represents 3,000 women nationally, has given us valuable data on the profile of its clients from the black and minority-ethnic communities. It reports difficulties in obtaining good-quality lawyers already. Many victims have mental health problems and many are destitute or in very low incomes. For many, English is not their first language. Unsurprisingly, few have knowledge of how the English legal system operates.
The Minister has mentioned in the past the exceptional gateway mechanism and how he hopes that that will deal with those who fall out of scope. But under the proposed provisions, the woman described who has to navigate herself through these difficult waterways has to apply for exceptional funding explaining in legal terms why her case is exceptional without the help of a solicitor, which can be extremely difficult. By its very meaning, the exceptional gateway is meant only for those cases that are so unusual that they are exceptional. When the Minister comes to reply, will he explain how a victim of domestic violence can prove their case is unusual or exceptional when their profile conforms with that of almost half of all victims yet does not fall within the evidential gateway?
These provisions are yet another example of how Her Majesty's Government's policies disproportionately affect women and in particular black and ethnic-minority women. Subject to what other noble Lords may say, I will invite Members of the House to follow me through the Lobby if the Minister does not feel able to concede on this issue. All these amendments are consequential one on the other. Perhaps I am always overoptimistic, but even now I hesitate, to allow the Minister to rise to his feet and put himself and his Government out of certain misery.
Baroness Butler-Sloss: My name is on this amendment so perhaps the noble Lord, Lord Thomas of Gresford, will permit me to speak after the noble and learned Baroness. I will speak briefly to underline the points because she made them so well that it is not necessary for me to speak at any length.
I know very well that the Government recognise the seriousness of the impact of domestic violence, which as we all know is a serious scourge in family life. It is worth remembering that it is not only a serious scourge for the victims, because so many of these women and men-and there certainly are some men-have children. It is the children who probably suffer most, not only short term but long term, in their ability to cope with life. Consequently, if the women-it is mainly women-are unable to get to court with the appropriate help, they are not the only ones who suffer, because their children suffer also. I find it difficult to understand why the Minister cannot accept the ACPO definition. There is not much wrong with the Government's definition but it is not quite as broad as the ACPO one. I have never understood the police to be unduly generous or overenthusiastic in their approach to these issues.
I underline what the noble and learned Baroness said on Amendment 43. If Amendment 43 is not
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That credible, documentary evidence from a responsible person would be acceptable to a court but will not initiate that particular victim getting the help that he or she deserves. I ask the Minister to look again at this absolutely effective group of circumstances in which victims tell their story. It should get to court with the appropriate help.
My last point, briefly, is on the 12 months. Again, as the noble and learned Baroness said, a lot of women take a very long time-some men take even longer-to get to the point of disclosing what happened. Sometimes they get away and do not disclose it until after 12 months. That does not mean that it does not exist or that they are not at risk. To have this arbitrary period of 12 months is, for those who do not get there before then, another real obstruction to the Government's declared objective to try to stamp out domestic violence. For those reasons, I strongly support the noble and learned Baroness.
Lord Thomas of Gresford: My Lords, Amendment 39 is in the names of my noble friend Lord Macdonald of River Glaven and me. I am very sorry that he is not able to be with us at this particular point because he made a thoughtful and memorable speech in Committee that those who were present will recall. It was based upon his experience. As I recall it, the thrust of his speech was that we need to get up to date on the issues of domestic violence and not deal with them as we did 10 years ago.
I very much welcome Amendment 42 in the name of my noble friend Lord McNally. It has been criticised as being a narrower definition than that in the name of the noble and learned Baroness, Lady Scotland. I do not see it that way. What is omitted is,
The simpler and more concise words "threatening behaviour" are there instead. Anybody knows that just one incident of threatening behaviour could, for example, land someone in court. The other words that are omitted are,
I turn to our Amendment 39, as opposed to Amendment 43 tabled by the noble and learned Baroness, Lady Scotland. There are certain differences between the two; for example, my noble friend Lord Macdonald and I suggest that domestic violence,
Let me pause there for a moment and put this amendment in its context. An application is made by a wife-or, indeed, by a husband-to the director of legal aid services for legal aid for the purposes of family proceedings, and domestic violence is alleged. What comes before the person concerned in the director's department is an application on paper to be supported by certain evidence. As I say, we have put in a presumption, which is stronger than the words used by the noble and learned Baroness, Lady Scotland, in relation to orders made in the court, findings of fact, non-molestation orders and undertakings given in lieu of those orders when the partner has been convicted of a criminal offence or there are ongoing proceedings for a domestic violence offence that may not have come to fruition-or an applicant has been referred to a multiagency risk assessment conference. At that point the person who is dealing with the application must presume that domestic violence is a part of the case and will grant legal aid on that basis. But suppose that none of those elements is there. In sub-paragraph (b) we say,
The problem with the definition proposed by the noble and learned Baroness, Lady Scotland, is that, as the noble and learned Baroness, Lady Butler-Sloss, said a moment ago, of a group of circumstances, and when you group circumstances together in that way there is always the possibility of leaving something out. Broader regulations that the Lord Chancellor can make-and should a lacuna be found can alter-seem to me a better way to go about it. Also, my sub-paragraph (b) refers to,
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?
The Lord Bishop of Exeter: As the noble and learned Baroness, Lady Scotland, indicated, my friend the right reverend Prelate the Bishop of Leicester has his name down to amendments in this group and regrets
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"Legal aid is nothing short of essential for many victims of domestic abuse to escape the horrendous circumstances that they face. Without this support they would be unable to secure recourse in relation to fundamental issues such as injunctions, housing or access to children, potentially trapping them in a cycle of mistreatment and fear. It is clear that legal aid frequently allows for the resolution of domestic abuse cases before they escalate, in some cases avoiding serious injuries or even loss of life. We welcome the government's decision, reflected in the Bill, to protect the provision of legal aid in many cases where domestic abuse is involved. Yet, by deviating from the standard definition of domestic abuse utilised across government departments and police forces, the Bill risks restricting the overall number of cases entitled to support, and consequently causing harm to many individuals and families. Similarly the proposed list of 'objective evidence of domestic violence', required in order to qualify for legal aid, appears restrictively narrow".
At heart, this group of amendments is about the balance of risk. I fully understand that the Government are concerned with the risk of abuse of the legal aid system and the risk that people will make false claims under the guise of domestic violence claims, but there is an opposing risk of harm-indeed, possibly of death-to the victims of domestic violence. Were even one or two people to be harmed or to lose their lives as the result of not being able to access legal aid through there being an inadequate agreed definition and because of a too narrow evidential base, that would be unacceptable. I listened carefully to the noble Lord, Lord Thomas of Gresford. I welcome the amendment that stands in his name, and if push comes to shove I would probably support it, but Amendments 41 and 43 really are to be preferred.
I spoke earlier today about a basic principle in legal drafting being to spot worst-case scenarios well ahead of time. That point comes into play here but there is another important principle in working out the impact and the implications of any fully enacted law: it should defend the weak against the misuse of power by the strong. I am not convinced that, without the kind of definitions and evidential base that these two amendments call for, we would have got that entirely right. I am looking to the Minister to give some very strong comfort in that direction.
Baroness Gould of Potternewton: My Lords, I support my noble friend's amendments. I shall concentrate my remarks on the particular difficulties and the reality that the Bill creates for women from the BME community, but before I do so I ask the Minister to clarify a point. The Government argue that too many cases of domestic violence are somehow not genuine and that the allegations are based on false claims. I was interested to discover the basis for that interpretation so I asked the Government the following Question:
"The Home Office does not hold information on numbers of false claims of domestic violence. Investigating domestic violence is an operational matter for individual police forces".-[Official Report, 9/2/12; col. WA 88.]
Government acceptance of the ACPO definition could-I use the word "could" advisedly-be welcomed by BME women. As Southall Black Sisters made clear, and I thank that organisation for its briefing, a restricted definition of domestic violence would have an adverse impact on BME women particularly since many are often subject to immense psychological and emotional abuse, as its work on domestic slavery, immigration difficulties, forced marriage and honour-related violence shows. These cases often reveal patterns of immense financial, sexual and emotional abuse, and there are concerns that an unrealistic, narrow definition of domestic violence would exclude many vulnerable BME women from the crucial protection that they need. If the concept of any incidence of domestic violence is removed from the proposed definition, it seems that those women will find that their concerns are still valid.
It is ironic that for the purpose of making applications to remain in the UK permanently under the domestic violence rule in immigration law, the Government have accepted that a wider range of evidence from a variety of sources is acceptable to show proof of domestic violence. This includes evidence from the medical professions, women's organisations, refuges, advice centres and so on. However, they seek to restrict the evidential requirements for the purposes of legal aid. Again, this shows inconsistency in how the Government are addressing the problem of domestic violence across all state departments.
It is believed that the restrictive nature of the domestic violence gateway criteria will have a disproportionate effect on black and minority ethnic women. The recent survey by Rights of Women and Welsh Women's Aid showed that fewer than half the women who reported domestic violence to a specialist agency had the requisite evidence to obtain legal aid under the proposed gateway criteria; and that more than 50 per cent would not have been able to provide the evidence within the 12-month limit if it applied. Experience has shown that at least 75 per cent of BME women who complain of domestic violence and abuse do not have the type of evidence stipulated in the gateway criteria. Where do they go?
The reason why they have extra difficulties is the many internal and external barriers that they face in seeking outside help. Reporting domestic violence is, in itself, an overwhelming task for them. On average, BME women are likely to tolerate domestic violence for 10 years before seeking outside help. In the culture of many minority communities, women are expected to internalise abuse and violence. Removing meaningful legal protection from BME women will push them into community forums such as religious arbitration tribunals, where they will be encouraged to reconcile with abusive partners to uphold religious and family
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The survey to which I referred earlier also showed that at least 19 per cent of women have no corroborating evidence other than from a women's refuge. Those working with BME women believe that the figure is much higher for minority ethnic women because of the uniqueness of their position.
The amendments that we are debating today will be of further assistance to BME women since legal aid does not appear to be available in domestic violence cases for those against whom a protection order is sought-that is, the alleged perpetrator. Removing legal aid from perpetrators in these cases will increase the number of women who face questioning in court from the perpetrator of the abuse, rather than from their solicitor. This could involve the perpetrator cross-examining a woman in detail on her account of the physical or sexual violence that she has experienced. Legal aid for court hearings should be available for those against whom a domestic violence injunction is sought to ensure that women are not revictimised in this way. This is especially troubling for many BME women who are subject to intense community and family pressures to remain silent or reconcile, even in the face of violence and abuse. Many are unfamiliar with the legal system, traumatised and often do not feel confident about speaking in public. This proposal will completely disadvantage them in the legal process, since many will not want to face their perpetrators. It will have a profoundly deterrent impact on such women.
Finally, if legal aid is no longer available for immigration cases, it is unclear where people who are unable to pay privately for advice will go, or how the quality of that advice will be ensured. There is no indication of any sources of immigration advice for those who are unable to pay for it privately. Not-for-profit organisations are unlikely to be able to step in as they will not meet the regulatory requirements or be able to secure the necessary funding. Maybe MPs' surgeries will be the only places remaining to which individuals can go for immigration advice.
This Bill will have a life-threatening impact on BME women who, as a result of cultural, religious and other social pressures and racism, already struggle to access the legal system. It will violate the rights and fundamental freedoms of all vulnerable women but will have an immensely disproportionate impact on BME women. Legal aid is not a luxury for any woman; it is not a luxury for BME women who face abuse and domestic violence; it is an absolute necessity; and, for too many, it is an essential lifeline.
Lord Scott of Foscote: My Lords, I am fully supportive of the spirit behind these amendments. I rise simply to query a small point concerning the definition of abuse in Amendments 41 and 42, both of which are to the same effect. Amendment 41 states that,
When one speaks of domestic violence, I imagine that, like me, most Members of the House have a fair idea in their minds of what is involved, and the speeches that your Lordships have heard this afternoon rather underline that: namely, that some party to a domestic partnership has been battered or threatened with violence in some way. If the only threat is a financial one, is it appropriate to describe it as domestic violence? I accept that financial threats might exacerbate other examples of domestic violence. However, I refer to financial pressure alone-nothing but financial pressure-whereby one of the parties to the domestic partnership is endeavouring to control the expenditure of the other party in one way or another. We have heard a great deal about cuts on a national basis and nations living beyond their income. However, parties to a domestic partnership can live beyond their income as well. One of the parties may seek to curb this, and that could be described as threatening behaviour of a financial character. Is that to be called domestic violence? For my part, I think that including the adjective "financial" as being sufficient by itself to constitute domestic violence rather diminishes the impact of "domestic violence". I suggest that Amendments 41 and 42 would be better amendments if that adjective were removed from them.
Baroness Howe of Idlicote: My Lords, I support these amendments, as they show that noble Lords across the House recognise the appalling incidence of violence, particularly violence against women. The amendments seek to make clearer the way in which proceedings can be brought, but above all the fact that legal aid must be available to bring these proceedings in the circumstances outlined in the amendments.
I particularly support Amendment 43 in the name of the noble and learned Baronesses, Lady Scotland and Lady Butler-Sloss, both of whom have spoken to it. Above all, we need to realise that one of the reasons that action is not taken in areas where it should be is because the law on matters such as stalking is totally out of date. With the advent of new media, we are beginning to see abhorrent forms of abuse taking place against women, but the requisite law is not in place to deal with these situations. Amendment 43 emphasises who will be damaged by this abuse. Children will suffer in the long term. In many cases women subject to this abuse will not bring a case unless they have back-up and legal aid. The Minister has made good attempts to get the agreement of all parties to his proposal. Nevertheless, it would be very much better if he were to accept Amendments 41 and 43 in the names of the noble and learned Baronesses, Lady Butler-Sloss and Lady Scotland.
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
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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.
Lord McNally: My Lords, in a way, this mirrors the previous debate, in that we are discussing how under the Bill we intend to deal with private family legal aid and its relation to domestic violence. A number of speeches have ranged wider than that; certainly, remarks made outside the House in the press, on the radio and elsewhere suggest that somehow the Government are turning their back on the subject of domestic violence.
Let me make it clear from the start that the Government are absolutely committed to supporting action against domestic violence and supporting the victims of domestic violence, whether through legal aid funding or other means. I do not think it serves the interests of those suffering from domestic violence to suggest otherwise. Our record is good. We have provided more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence and support services, and are providing £900,000 to support national domestic violence helplines and stalking helplines.
The Ministry of Justice contributes towards the funding of independent advisers attached to specialist domestic violence courts-a total of more than £9 million up to the end of 2012-13. In addition, the victim and witness general fund will provide a total of nearly £15.5 million in grant funding over the next three years to voluntary sector organisations that support the most seriously affected and vulnerable and persistently targeted victims of crime. Of that, nearly £4.7 million will be used to fund 44 court-based independent domestic violence advisers across England and Wales over the next three years. We will also allocate £3 million a year for the next three years to 65 rape crisis centres, and are working with the voluntary sector to develop the first phase of new rape support centres where there are gaps in provision.
Domestic violence protection orders are being piloted in three police force areas. They are designed to give immediate protection to victims by banning a perpetrator from returning to the house and giving the victim the breathing space they need to consider their next steps. Just today, we announced a one-year pilot which will take place from this summer to test domestic violence disclosure schemes, known as Clare's law. The pilot will test a process for enabling the police to disclose to the public information about violent offending by a new or existing partner where that may help to protect them from further violent offending.
So the claim that we are turning our back on the problem of domestic violence is simply not true. Thankfully, there has been a real change in attitudes in this country towards domestic violence over the past 30 years. Of course, the party opposite can take its share of the credit for that progress. We still have some way to go-some would say a long way to go. The Government will continue to give priority to this issue but on the basis of the facts, not fantasy. For example, I make it absolutely clear that we are retaining legal aid for the purpose of seeking an order or injunction to prevent domestic violence, exactly as at present, although that was not the gist of the letter referred to by the right reverend Prelate the Bishop of Exeter. This means keeping the power to waive the upper financial eligibility limits and a relaxed merits test, so that those who need help can get it. Defining domestic violence or what evidence is needed to show domestic
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We know that domestic violence can have a devastating effect on victims. It is also a significant predictor of children being taken into care, as well as a precursor to all sorts of other social problems, as the noble and learned Baroness, Lady Butler-Sloss, pointed out. On top of this, we also know that perpetrators of domestic violence can assert a controlling, insidious power over their victims, including financial power, and this could stop a victim effectively presenting their case against the perpetrator in court, for example.
That is why we have made a large, and extremely important, exception in our proposal to remove most private family legal aid from the scope of legal aid-that is, where domestic violence is involved. To be absolutely clear, these are the follow-up issues concerning children and money that arise after someone has left their abuser and their safety has been secured. Because domestic violence is involved, and because someone may be much less able to present their case in court against their abuser than in a case where no domestic violence is involved, we want to make legal aid available. However, I remind the House that no one has ever suggested that this should be the almost means-and-merits-free legal aid that is available to get an injunction or domestic violence order. Normal means-and-merits testing will apply in these family cases, as it does at present.
This point is relevant to Amendment 2, tabled by the noble and learned Baroness, which essentially states that means-testing would apply to victims of domestic violence. It does, of course, although in a very relaxed way for injunction cases and in the normal way for private family cases. I suspect that her main reason for tabling the amendment was simply to ensure that this matter was debated, and I think she was entirely right to do so. This is a vital subject but her amendment, perhaps inadvertently, underlines the point that legal aid resources have to be prioritised. That has always been the case and is even more so now. We absolutely prioritise cases where safety is an issue-the injunction cases-and we are still prioritising family cases that involve domestic violence, but I make a plea to the House to remember that we are talking about legal aid for two very different types of case, and different rules must of necessity apply.
I turn now to the subject of how the Bill should define domestic violence. This is covered by government Amendments 37, 38, 40, 42, 70, 71 and 72, as well as Amendment 41, tabled by the noble and learned Baroness, Lady Scotland. There has of course been much debate on this point. The issue has been that the Bill as introduced does not use the operational definition of domestic violence first devised by the Association of Chief Police Officers. As I have previously explained,
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I know that the noble and learned Baroness is concerned that we have not put "any incident", from ACPO, in our amendment. The simple reason is that we have always been clear that, to qualify for legal aid in a private family case, objective evidence of domestic violence must be provided, and I think there is general agreement on that principle. In drafting terms, the phrase "any incident" simply does not work with this principle, but the main point is that all forms of abuse, as defined by ACPO, will explicitly be covered. I hope that, although the noble and learned Baroness has tweaked the ACPO definition slightly in her amendment, she will be satisfied with ours.
I turn now to Amendments 39, 43 and 44, which concern the forms of evidence of domestic abuse to be accepted in order to qualify for legal aid in a private family case, and whether any time limits should apply to that evidence. I would like to remind the House of my earlier remarks that the evidence requirements apply only to private family law matters and not to injunctions or domestic violence orders to secure someone's safety.
Amendment 43 would specify on the face of the Bill, rather than in regulations pursuant to Clause 10 as has been our intention, a broad range of evidence to demonstrate domestic violence for the purpose of qualifying someone for legal aid in a private family law case. Amendment 39 does something similar, albeit with a narrower list. As I have said before, we want victims of domestic violence to have the benefit of legal aid in such cases where they will be disadvantaged by facing their abuser as the other party. It is important to remember that our proposal is that victims of domestic violence remain in scope of the legal aid provision.
The noble Baroness, Lady Gould, asked about the basis of our claims for unfounded allegations. From this Dispatch Box, I have never justified what we are doing in terms of unfounded allegations. During our consultations, there was evidence from the Family Law Bar Association, from the Law Society, from Resolution and from the NSPCC as well as from family judges that this proposal could see a rise in unfounded allegations, and we need to guard against that.
Lord McNally: The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, our intention is that they will be set out in regulations under Clause 10. We believe that it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation, which can be amended to respond to particular issues which may arise in the practical operation of the scheme.
Baroness Butler-Sloss: I am very interested in what the Minister is saying, but perhaps I might ask him to explain whether the points in Amendment 43 will be covered in regulations. If they are, then this amendment is not necessary, but if the intention is not to cover all of those, then the amendment would remain necessary.
We indicated the intended forms of evidence in consultation and listened to views expressed in response. As a result, we widened the range of forms of evidence to include evidence from a multi-agency risk assessment conference, a finding of fact by the courts and the fact of a child protection plan being in place. This last point is particularly important because we moved from an intention just to protect adult victims of domestic abuse to include victims of child abuse by this means.
The allegation that we heard again today was that the Government's criteria will still miss a great number of genuine victims, and various pieces of evidence were adduced to support this. However, the evidence referred to domestic violence victims as a whole-highlighting their difficulties in dealing with the civil or criminal justice systems, for example. We are dealing with a subset of that group: those who seek private family law legal aid. They will have slightly different characteristics from domestic violence victims as a whole. By definition, they will be engaged in the civil justice system. A significant number-there were nearly 10,000 in 2009-10-will seek civil legal aid for a protective order or injunction at the same time as they seek it for their private family law matter. They will all meet the evidential criteria.
We know that in total there were 70,000 legal aid family cases in 2009-10. I will compare that figure to the prevalence of the types of evidence that we are requesting. Around 24,100 domestic violence orders were made in 2010-the great majority with the benefit of civil legal aid. Around 74,000 domestic violence crimes were prosecuted in 2009-10, and there were 53,000 domestic violence convictions. Around 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months to June 2010. In future there will also be those with ongoing criminal proceedings for domestic violence, and those in whose cases a finding of fact in the courts has occurred. Clearly the figures will overlap. However, what this points to is that a significant proportion of the 70,000 private family law cases that we currently fund will continue to be funded. We think that the proportion will be around one-quarter, which matches our rough estimate of the prevalence of domestic violence.
With this in mind, the Government consider that we have got the balance on evidence requirements about right. The forms of evidence we intend to accept will meet a high standard of objectivity. However, I have heard what has been said during the debate, and of course respect the wisdom and experience of those relaying their views to me. We are therefore prepared to go further and accept undertakings as evidence. We are satisfied that undertakings are sufficiently objective and fit with what we consider the right approach. We remain of the view that these forms of evidence are better left to regulations rather than placed into primary legislation. They are points of admittedly important detail, but ones that may be subject to change as the scheme settles in.
I hope that my noble friend Lord Thomas will be reassured by what I said and will not press his amendment, so that we can deal in regulations with the matters covered by it. I also hope that, now she has seen how far we have gone on that matter, the noble and learned Baroness, Lady Scotland, will be persuaded to withdraw her amendment.
As I said, it was extremely useful in the debate to put on record the Government's determination to combat domestic violence with the entire panoply of services and funding at our disposal. Here we are dealing with a subset of those affected by the issue-a fact that not all speeches today covered. We have tried in our amendments and in the concessions that we made to re-emphasise that we understand the importance of the issue and are determined to make sure that we get the balance right. I hope that neither my noble friend nor the noble and learned Baroness will press their amendment, on the understanding and assurances that I gave of using my noble friend's amendment as the template for what we will do in regulations.
Baroness Scotland of Asthal: My Lords, I waited with bated breath to hear what the noble Lord said because I hoped that his remarks might give me some comfort. I regret to say that they did not, not least because he has not addressed the issue raised in Committee and in this debate about the other forms of information that are seen to be of use in determining the objectivity needed in the evidential criteria. The Minister also has not explained why he believes that the UKBA definition for the evidential gateway is not sufficient to give the Government the assurance that they need that bona fide allegations of domestic violence will be supported and no other.
I shall reply to the points made by the noble Lord, Lord Thomas of Gresford, about the comments made in Committee by the noble Lord, Lord Macdonald. The noble Lord, Lord Macdonald, made a very powerful speech in Committee with which I wholeheartedly agreed. He said that,
Lord Thomas of Gresford: Does the noble and learned Baroness accept that my noble friend Lord Macdonald tabled Amendment 39? Paragraph (b) of that amendment is wider than her definition because it can include matters other than the circumstances that she has set out, which are suitable for immigration matters and can include matters that come to the Lord Chancellor's notice at a later date that could easily be inserted into these regulations, if appropriate. Does she accept, with that presumption and that wider ambit, that my amendment, which, as the Minister has said, will be the template for these regulations, is a better amendment than her own?
Baroness Scotland of Asthal: I regret that I do not. Let me explain why. The framework included in our amendments is the framework that currently works and is in use by all practitioners. If the Minister wished to add a provision that could add to those criteria, I would be more than happy. As it stands, I hope the noble Lord will accept that our amendment is broader in terms than his and has the degree of specificity that enables victims to have the assurance that that which is currently used as the evidential base can still be used as the evidential base in future.
Lord Thomas of Gresford: It is the specificity of her amendment that I complain about because it puts into the Bill in stone what is required, whereas the amendment tabled by my noble friend Lord Macdonald, given what he said in his speech, which the noble and learned Baroness quoted with approval, is wider in that it leaves open other circumstances to be considered.
Baroness Scotland of Asthal: My Lords, I do not accept that. I accept that it sets in stone the minimum criteria and that additional matters can be added. I am looking at the minimum. I say that because today UKBA uses this definition. It has used it since 2004, and there has been no suggestion in the eight years that it has been applied that it has been improperly used or does not meet the needs of the case. My contention is that if it ain't broke, why are we seeking to fix it?
I shall deal with the second issue raised by the noble Lord. He referred to the noble Lord, Lord Macdonald, and spoke about what has happened in the past 10 years. I shall remind him of what the noble Lord, Lord Macdonald, said. He said:
"I have a major problem with an approach that risks rolling back decades of progress in our understanding of a crime that is an absolute scourge, not least in the way that it condemns so many of the children who live with it to disordered and chaotic
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Therefore, I absolutely agree with what the noble and learned Baroness, Lady Butler-Sloss, said about the impact on children. It affects 750,000 children in our country every year, and that is a price too high to pay. We can save money, and we can also save lives. The system that we implemented, which was agreed to by all parts of the House, saved £6 for every £1 we spent, and we saved £7.5 billion a year, so what we propose in these amendments will save lives and costs. There is no reason why we should be retrogressive and go back to where we were before 1997 when the previous Government came in. I do not believe that that is really what the coalition wants. I would like to believe that it, like us, believes that we have come a long way in supporting victims, and we do not want to go back. That is why I will be seeking the opinion of the House.
Lord McNally: I did not want to interrupt the noble and learned Baroness's peroration, but for the assistance of the House, if a Division is called, if Amendment 2 is carried, we do not accept that Amendments 41, 43 and 44 are consequential. However, we will not divide the House when they come up. I assume that the noble Lord, Lord Thomas, will not move Amendment 39. We wait with great anticipation. I will be moving the government amendments in the usual way. You lot have had a lot more experience at doing this than me. I hope that is of help to the House.
Baroness Scotland of Asthal: I thank the noble Lord for that helpful indication. I agree with him. I would argue that my amendments are consequential, but I am very grateful for his gracious indication that he will not press that point.
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