Legal Aid, Sentencing and Punishment of Offenders Bill

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, "““any incident or repeated incidents of threatening behaviour””." 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, "““and including acts of neglect, maltreatment, exploitation or acts of omission””," which must surely come within the definition of abuse of an emotional kind. 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, "““will be presumed on an application for civil legal services””." 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 Lord Chancellor may by regulations make provision for the verification of domestic violence by other well founded and objective primary evidence””." 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, 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, "““well founded and objective primary evidence””," which your Lordships may feel is the proper way in which to deal with an application that will involve the expenditure of public money. 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.