Legal Aid, Sentencing and Punishment of Offenders Bill

Every time I look up, the noble Lord, Lord Beecham, is speaking somewhere in the Chamber. The Opposition are overworking the man—give him the night off. The definition should also be seen in the light of the Bill’s structure and purpose. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subject to domestic violence by the other party to those proceedings and is likely, as a result of that abuse, to be intimidated or otherwise disadvantaged in presenting his or her case, should have access to legal aid. It does not provide that any individual who has been the subject of, or is at risk of being the subject of, abuse—as defined in that paragraph—will qualify regardless of what evidence of abuse might exist. Not every such individual will be intimidated or otherwise disadvantaged in the way that the paragraph is intended to address. The paragraph establishes a description of legal services. Whether an individual qualifies for them in any specific case requires not only that the individual falls within the categories in paragraph 10 but that the individual meets the criteria to be established in regulations made under Clause 10. As has been explained in the Government’s response to consultation and in debates on the Bill, those criteria will set out the specific requirements as to the evidence of the fact or risk of abuse. Therefore, the definition of abuse itself is only a preliminary part of the picture. However, it is important that we get it right. I suspect that the Committee will say ““hear, hear”” to that. The definition of abuse presently in the Bill embraces mental as well as physical abuse, neglect, maltreatment and exploitation. These references would cover, for example, abusive behaviour relating to family finances—a point that was raised earlier. The definition in the Bill would not exclude from scope any of the types of abuse covered by the definition used by the Association of Chief Police Officers, so this part of the amendment is unnecessary. This could lead to the understandable question of why we do not simply adopt the ACPO definition, given its general recognition. However, the ACPO definition is not set in legislation anywhere and is therefore not permanent, as demonstrated by the recent consultation announced by the Home Office. It could change but legislation would not change with it, at least not without subsequent primary legislation. The ACPO definition is operational in nature and purpose. Legislation serves a different intent in setting the framework for the way in which legal aid systems will operate and the definition is drafted to better fit this purpose. I reiterate that this does not mean that there are circumstances covered by the ACPO definition which are not covered by that in the Bill. Indeed, my colleague the honourable Member for Huntingdon, Jonathan Djanogly, issued an invitation during Report in the other place for Members to give any examples of cases that would be excluded by the Bill’s definition compared with that of ACPO. It might also be noted that in terms of the range of persons involved the ACPO definition is narrower than that in the Bill, the Bill’s definition being linked to that already used in the legislation governing family homes and domestic violence in Part IV of the Family Law Act 1996. I speak as a lay man. That is the explanation. That is why we did not move ACPO into the Bill en bloc. I ask noble Lords to study Hansard. If the explanation does not stand up, I invite the noble and learned Baroness and others to come back to me on that point between now and Report. Before I move on I would like to address one other issue relating to these amendments which could be misleading. The reference to ““any incident”” might be read as securing legal aid for any person who could point to some sort of incident regardless of whether it was serious or minor, such that the victim would not genuinely feel inhibited in pursuing litigation against the other party. That would not reflect the underlying intention nor be the effect in practice if the regulation required certain forms of proof. The touchstone for whether a party obtains funding must be whether the abuse was such as to inhibit the ability to present their case against the other party. The circumstances that will be accepted as evidence of abuse will turn on the application by courts, prosecutors and other agencies of their existing criteria. Where the courts and others have determined that the abusive conduct is of a level that protective action or prosecution must be taken, legal aid will be available. Amendments 46 and 43 would set out a range of forms of evidence that would be accepted as demonstrating domestic violence for the purpose of qualifying for legal aid in private family law cases. 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 legal aid provisions. However, we heard many concerns during the consultation that this proposal could see a rise in unfounded allegations and we want to guard against that. Therefore, we need clear objective evidence of domestic violence in order to target taxpayers’ money on genuine cases where the victim needs assistance because of being intimidated or otherwise disadvantaged by the fact of facing the abuser in proceedings. The forms of evidence that will be accepted for this purpose are not set out on the face of 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. We indicated the intended forms of evidence in consultation and listened to views expressed in response to that consultation about what should be accepted as evidence of domestic violence. As a result we have widened the range of forms of evidence. Only one of these forms of evidence will be needed, so legal aid will be available for victims of domestic violence in private family law where any one of these criteria is met: a non-molestation order; an occupation order; a forced marriage protection order or other protective injunction against the other party which is either in force or has been made in the past 12 months; if there is a criminal conviction for domestic violence committed by the other party against the applicant for funding unless the conviction is spent; if there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding; if the applicant for funding has been referred to a multi-agency risk-assessment conference as a harassed victim of domestic violence, and a plan has been put in place to protect them from violence by the other party; or there has been in the court a finding on fact of domestic violence by the other party, giving rise to the risk of harm to the victim.