Legal Aid, Sentencing and Punishment of Offenders Bill

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 Family Division; the noble Lord, Lord Blair, the former Commissioner of the Metropolitan Police; and the right reverend Prelate the Bishop of Leicester, supported as he is by a letter dated 28 February signed by most of the faith groups which have expressed concern about the effect of these proposed provisions. I hope that noble Lords, not least the Minister, will have seen that letter. 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: "““If domestic violence is involved, the Government believe that legal aid should be provided””.—[Official Report, Commons, 31/10/11; col. 638.]" 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 the evidential gateway being created by the Bill, and a great injustice may thereby be allowed to enter into our system. 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 aware of domestic violence but, under current proposals, much of this evidence would not be accepted by the Government. 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 term 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.