Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, it is a real privilege to follow the last three, very powerful, speeches in support of this series of amendments. For completeness, I declare my interest as the chair of the All-Party Group on Domestic and Sexual Violence, and founder and patron of both the Corporate Alliance Against Domestic Violence and the Global Foundation for the Elimination of Domestic Violence. I am particularly grateful to follow those three powerful speeches because your Lordships have had a taste of the different elements that participate in the criminal and civil justice process to bring relief and succour to victims of domestic violence. Those elements are the experience of the noble and learned Baroness, Lady Butler-Sloss, as a judge and previous president of the Family Division; the experience of the noble Lord, Lord Macdonald, in his sterling work dealing with these issues while he had the privilege of being our Director of Public Prosecutions; and, of course, the wealth of experience of the noble Lord, Lord Carlile. I do not propose to reiterate everything that they have said about the nature of domestic violence but it is important for us to remember that it can affect one in four women in our country and one in six men, and that the secondary victims of domestic violence are the children in those families. Between 750,000 and 900,000 children in the United Kingdom are adversely affected by domestic violence. Tragically, we see them overrepresented in every indices of dysfunction, whether it is alcoholism, mental illness, criminality or lack of educational and physical milestones being met. The breadth of domestic violence has been well understood. To say a word in response to a question about financial violence from the noble and learned Lord, Lord Scott of Foscote, regrettably—as the Minister will know from his own readings of this subject—financial violence can often be the tool used to restrict a woman and a victim’s movement, and to impose on them situations which cause them physical and emotional harm. Having no money, being controlled and being restricted can have a very deleterious effect. What the noble Lords, Lord Macdonald and Lord Carlile, have said is correct about the way in which we have learnt about domestic violence. Over the past 30 years, the learning has come, regrettably, at the cost of listening to victims who have suffered from the mistakes that we made in the past; namely, our inability to understand or to respond in a holistic and joined-up way. The work that has been done, not least in this House by Members and elsewhere, has enhanced our understanding and the definition in Amendment 45, which is tabled in my name, that of the noble and learned Baroness, Lady Butler-Sloss, the right reverend Prelate the Bishop of Leicester and the noble Lord, Lord Blair, is not innovative. It is the accepted definition of domestic violence used on a day-to-day basis by courts, prosecutors, advocates, third-party non-governmental organisations, individuals and elsewhere. The way in which that definition has been crafted has been influenced by the experience culled over a period of 30 years. Before this Bill, there was never any suggestion that any amendment of that definition was immediately necessary to prevent people taking advantage of it in a way that was not proper. As the noble Lord, Lord Macdonald, has said, the real issue that has troubled many of us is how we persuade and enable those who are in need of the succour that can be provided to come forward, not how we stop them from making false allegations. That problem has been alleviated but not expunged. We still have to encourage. Regrettably, 89 per cent of repeat victims of domestic violence happen to be women. One in six is a man, but it is a lower level, but they tend not to be repeat victims, so the problem remains. The definition adopted by the Association of Chief Police Officers has served us well. I do not for a moment suggest that the Government are not committed to alleviating domestic violence. The fact that the Government have excluded domestic violence victims from the general legal aid ban on family law is important. I acknowledge that immediately and we should applaud it. I know that the Minister’s colleague in another place, Mr Djanogly, said in terms: "““If domestic violence is involved, the Government believe that legal aid should be provided””.—[Official Report, Commons, 31/10/11; col. 638.]" We say to the Minister today that, in order to fulfil that acknowledged commitment, the definition used in the Bill has to be changed and should reflect the accepted definition which has been used on a day-to-day basis by everyone. If it is not, we run the risk of excluding about 46 per cent of the domestic violence victims who are currently eligible for legal aid. What the noble Lord, Lord Carlile, said was absolutely right: we need prevention and early intervention. We have been encouraging victims to come not when they reach the stage of being a high-risk victim on the multi-agency risk assessment Richter scale, because, quite frankly, that is sometimes almost too late. To satisfy that high-risk criterion, victims have to be at risk of death or grievous bodily harm. We have encouraged victims to seek appropriate intervention and relief at an early stage, when there is a punch, a kick or a push, and that has started to happen. We are winning on that. The Minister will know that, since 2003, when we jointly started to look at his issue in a more concentrated manner, we have reduced domestic violence according to all the figures by 64 per cent and have saved—I know how important is the economic cost at this moment of real austerity— £7.5 billion a year. That is a real saving and we in this country now know how to deliver it. A key component of that early intervention and reduction in economic costs was, and always has been, the availability of legal aid for victims who need it. By intervening early, we have reduced the level of deaths. The noble Lord also knows that, if we are dealing with a murder investigation, it will cost the state at least £1 million from interdiction to conviction. If children are involved, we can be looking at £2 million per case. One has only to do very simple maths to work out that failure to give legal aid at a judicious moment will cost us far more in the long term than giving it early and allowing, quite often, the woman and her children to have appropriate protection, because the damage that is done to children can affect them for the rest of their lives. So I strongly urge and invite the Minister to ask his right honourable friend the Lord Chancellor to think again. On Monday night, I know that the Minister waved his white flag. I would encourage him to wave it even more vigorously in relation to this issue, confident that he can return to his right honourable friend the Lord Chancellor and assure him that in so doing he will save lives and cost. If the Minister has any information that indicates that there will be an economic saving in costs, we would obviously be most grateful to hear on what basis those savings will be found. Turning to the evidential base, I want to add a little to what has been said in support of Amendment 46. The Minister will recognise all the forms of evidence that are laid out there because those are the sources of evidence that the UK Border Agency currently uses. An applicant asking for an extension of stay or asking for the right to remain here will have to produce them if they wish to establish that domestic violence has been visited upon them. Noble Lords will know that since these provisions were introduced and applied by the UK Border Agency, no difficulty seems to have arisen in relation to misuse or abuse of them—both with the definition and with the sources of evidence. We know beyond peradventure that this works. Although I hear what his honourable friend in the other place says about wanting to restrict these sources of evidence in order to discourage those who would seek to make unmeritorious claims, I can certainly assure the Minister that no such unmeritorious claims seem to get through the sieve if you apply the sources of evidence that we have referred to in Amendment 46. It is important to think about the reality of the damage that would be caused if these sources of evidence are not accepted. We should look at the average case, such as when a woman has run from her home. She manages to go to her GP, who sees the injuries and notes them and then sends her to hospital because there are fears that she may have cracked a rib or another bone. She is seen by the medical staff and they verify that the injuries that she complains of are genuine. Her neighbours may have come in to rescue her from an assault. They may not have seen the assault taking place but have noted what was happening and taken her away. Social services may have come along and examined the children, spoken to them and heard what they had to say. All of that might have been used by the police who then came along and arrested the man. He may then acknowledge that he has indeed committed the offences that are alleged against him. Even if all those things had happened, under these provisions the woman would not be entitled to legal aid. That cannot be right. As the noble Lord, Lord Macdonald, has made clear, quite often women will stay for a long time in such circumstances. Recent research shows that on average a woman with children will stay for five and a half years in such a situation before she leaves. She may go to court and get an injunction or an order against the husband. He may be convicted of grievous bodily harm, sentenced to five years in prison, serve two and a half and come out. There is still a real risk to his wife and his children. The police may agree that he continues to present a risk to them. Under these provisions, because it would have been beyond the 12-month period, such a woman would not be entitled to legal aid. I know that cannot be what the Government wish to happen. The injustice of these provisions is plain and I cannot believe it is intended. I do not wish to believe that the Government intended to turn the clock back not 15 years, as the noble Lord, Lord Macdonald suggests, but actually by 30 years. We started this work with the Matrimonial Causes Act 1973, and thereafter legal aid has been there throughout the whole period. I do not believe that this is the noble Lord’s intention or that of his noble and learned friend the Lord Chancellor. Therefore, I must believe it is because the Government do not understand. That is disappointing and sad, because I thought that both the Liberal Democrats and the Conservative Members had been with us and that all of us were on the same journey. If the Government have lost their way, I am glad to see there are many on the Liberal Democrat Benches—and I am sure there will be on the Tory Benches, too—who will help them out. I also want to speak in support of the amendment spoken to by the noble and learned Baroness, Lady Butler-Sloss. She is right when she says that legal aid should be granted where cross-examination is conducted by the perpetrator of the abuse, so I ask the noble Lord to think again. There will be even more rejoicing—not just in this place but elsewhere—if the noble Lord can say in reply that, on mature reflection, the Government see the merit of not taking forward the provisions that they currently have in the Bill and that they would prefer to continue with the received and agreed joint wisdom that is apparent in the ACPO definition and in Amendment 46.