Legal Aid, Sentencing and Punishment of Offenders Bill

I look forward to the hon. Lady providing her reasons why that should be the case. The right hon. Gentleman made a significant number of points for his significant number of amendments, most of which I covered in my preliminary remarks, and I do not intend to go over them all again. However, he mentioned two particular points that I did not cover, so if he does not mind I will concentrate on those. It is not clear that amendments 92 or 93 would widen the category of services described in paragraph 10 significantly or at all. The definition of abuse used in the Bill is intentionally broad and not limited to physical violence, but it embraces physical or mental abuse. Abuse is stated to include sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation, but it is not limited to those examples. Therefore, we believe that it is sufficiently flexible to cover cases of genuine abuse, as is the intention. Both amendments refer to physical and mental abuse, which are already explicitly referred to in the Bill's definition. Additionally, they refer to threatening behaviour, violence and emotional abuse, which are clearly within the scope of physical and mental abuse and so are unnecessary and add nothing to the breadth of the category. Further reference is made to financial abuse. It is not entirely clear what that would cover outside the context of serious cases where the treatment of one party by the other in relation to the family finances amounts to physical or, in particular, mental abuse, which would include neglect, maltreatment and exploitation in the Bill's definition, where it is clearly within the definition of abuse in the Bill. Where the financial abuse does not amount to or form part of physical or mental abuse, it could be argued that the amendment would widen the gateway beyond what might be ordinarily understood as abusive behaviour, but in a way where the effect is unclear. For instance, there is no special reference to financial abuse in the provisions of the Family Law Act 1996 to protect against domestic violence or in case law, in contrast to emotional or psychological abuse, so it is questionable what it would add in this regard. However, the amendment also stipulates that any incident of abuse would suffice to come within the category. On one construction, that would make no difference since the existing definition does not require a course of conduct, but on another construction it might be argued that the explicit reference to any incident could be read as a potential fetter on the power to define what would be accepted as sufficient evidence of abuse through secondary legislation. That is because the type of evidence acceptable will reflect a certain degree of seriousness. For instance, a family court will not generally make orders relating to minor, one-off incidents, although it will do so in appropriate circumstances, such as a course of conduct of trivial incidents adding up to something more serious. It is not clear that any challenge to secondary legislation requiring forms of evidence that in themselves are unlikely to arise from minor, single incidents would have any prospect of success, but the risk cannot be entirely ruled out. Were it impossible to prescribe the forms of evidence proposed to date, we estimate that the consequent opening up of eligibility would at the very least double the cost of the domestic violence gateway to £130 million per annum. The part of amendment 23 that refers to violence or abuse"““between adults who are or have been intimate partners or family members, regardless of gender or sexuality””" is superfluous, since it duplicates the effect of paragraph 10(7), which sets out that for the purposes of the paragraph there is a family relationship between two people if they are associated with each other. That ““associated”” has the same meaning as set out in part 4 of the 1996 Act. In part 4 of that Act, ““associated”” is defined very widely and covers a range of relationships no less wide, and in some instances wider, than the ACPO definition. Amendment 93 would widen the domestic violence gateway so that legal aid would be available for the potential victim in private family law cases where there has been an as yet unproven allegation of abuse, or of the risk of abuse. It would make the gateway extremely wide and, in effect, would mean that self-reporting would have to be accepted as sufficient evidence of domestic violence, making any other evidentiary requirements redundant. It would be difficult to limit very far the forms of evidence of an allegation of abuse, or of the risk of abuse, that would be accepted. We estimate that that would at the very least double the cost of the domestic violence gateway to £130 million per annum. The amendment refers to allegations that person B has been abused by person A. In paragraph 10 of schedule 1, it is person A who is the victim, and person B who is the abuser—the other way around. However, the amendment does not change the opening proposition, which is that the services are provided to person A. This appears to have the perverse consequence that if the proven abuser, person B, alleges that the proven victim, person A, was the abuser, person A would qualify more easily for legal aid since they would then have to give as evidence only an allegation by person B of abuse or the risk of abuse. That is almost certainly a drafting error, but if it is not, and the intention is instead to ensure that legal aid would be available where either party might be the victim of abuse, that would be unnecessary. In relation to amendment 97, the intended effect is unnecessary because section 37 proceedings are public law matters and it would be possible, in private law proceedings, for a court that is considering a section 37 order to adjourn so that the parents, if they are not already represented, may have access to legal aid and representation under the public law heading. The actual effect is rather wider. However, the amendment would bring the whole of family proceedings, such as proceedings for residence and contact with children, into scope where the court considers making a section 37 direction, rather than simply consideration of that point. Again, this may be a matter of defective drafting, but if so the entire amendment would be superfluous. The right hon. Gentleman also asked whether an adjournment would introduce a delay in protecting a child. We would expect a court to adjourn a hearing only if it considered it safe to do so. The only way to avoid the potential for a section 37 direction to be made at a hearing involving unrepresented parents would be by providing legal aid for all private law children cases, which we believe would be a disproportionate response. There is already the potential for section 37 directions to be made in cases involving litigants in person under the present system, but as I have said, legal aid is available and will be in future to challenge such a direction. A significant number of comments were made in relation to amendment 74. The hon. Member for Hammersmith (Mr Slaughter) indicated that he will want to press it to a Division, so I will spend some time on it. I agree that it is an important matter. He said that he understands our intent. Does he understand that we need to have savings in legal aid? I am not sure what he meant when he said that he understands our intent—[Interruption.] He says that he will address that in a later debate, but I think that it is quite an important issue. In contrast to what he said, his right hon. Friend the shadow Secretary of State recognised in an article published only this morning that"““cuts need to be made””." Looking at the amendments tabled by Opposition Members, I cannot see where those cuts will be made. We have had a little look at what they are proposing. The estimated costs of the Opposition amendments are: £20 million in debt matters, £5 million in employment matters, £15 million in housing matters, £25 million in welfare benefits matters, £10 million in clinical negligence matters and £170 million in family law matters. The total is £245 million. The taxpayer deserves to know where the money for that will come from. Let me address the actual effect of amendment 74. To set out in the Bill the circumstances as specified in the amendment that should be accepted as evidence of domestic violence for the purposes of legal aid for the victim in a private family law case would mean that those circumstances, but not those that the Government intend to accept as evidence of domestic violence, would be set out in primary legislation. The Government would therefore have no power at all to amend those circumstances through secondary legislation. They would be in addition to any circumstances set out in secondary legislation for providing appropriate evidence of abuse. We expect that significantly more cases would receive funding if the circumstances set out in either amendment were accepted as evidence. The hon. Member for Edinburgh East (Sheila Gilmore) and others mentioned their concern about the issue of incentives for false allegations of domestic violence, but we received a significant number of responses to the consultation which expressed concern that there might be a rise in unfounded allegations of domestic violence, and the respondents expressing such concerns included the Law Society and the Bar Council.