Sir Alan Beith (Berwick-upon-Tweed) (LD): I want to add briefly to the intervention that I made earlier. The hon. Member for Rhondda (Chris Bryant) has been quite honest about the fact that all Governments get into this kind of situation, including the one of which he was a member, when he exercised responsibility for the conduct of the business of the House. He has made some sound points about the lack of an adequate amending procedure for material introduced at this stage. I can see that there has been extensive public

31 Oct 2011 : Column 625

discussion on all three of the issues, but the Government ought to find a way of ensuring that the House has a proper legislative process.

There are a number of ways in which that could have been achieved in this case. The Government could have put down their initial plans in the content of the Bill or by amendment in Committee, making it clear that, if the consultation led them to believe that the proposals should not be proceeded with in that way, they would accept that at a later stage. Alternatively, parts of the Bill could have been recommitted by a recommittal motion, to allow a couple of Committee sittings to deal with those matters. We ought to be very cautious about a motion that contains the word “notwithstanding”, because that means that the procedures that the House has set in place to ensure proper consideration are not being observed in this case. That is why I pressed the Lord Chancellor to provide a strong defence of what he was doing.

Question put and agreed to.

31 Oct 2011 : Column 626

Legal Aid, Sentencing and Punishment of Offenders Bill (Programme) (No. 2)

4.36 pm

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I beg to move,

That the Order of 29 June 2011 (Legal Aid, Sentencing and Punishment of Offenders Bill (Programme)) be varied as follows:

1. Paragraphs 4 and 5 of the Order shall be omitted.

2. Proceedings on Consideration and Third Reading shall be concluded in three days.

3. Proceedings on Consideration shall be taken in the order shown in the first column of the following Table.

4. The proceedings shall (so far as not previously concluded) be brought to a conclusion at the times specified in the second column of the Table.


TABLE

Proceedings

Time for conclusion of proceedings

Amendments to, and new Clauses and new

Schedules relating to, Clauses 7 and 8 and Schedule 1.

10.00 pm on the first day

New Clauses and new Schedules relating

to sentences of imprisonment or detention for public protection, life sentences,

extended sentences and the release and recall of extended sentence prisoners.

6.00 pm on the second day

New Clauses and new Schedules relating

to referral fees; new Clauses and new Schedules relating to fines on conviction

in magistrates’ courts.

8.00 pm on the second day

New Clauses and new Schedules relating

to section 76 of the Criminal Justice and Immigration Act 2008; new Clauses and

new Schedules relating to squatting.

10.00 pm on the second day

New Clauses and new Schedules relating

to, and amendments to, Part 1 (other than Clauses 7 and 8 and Schedule 1); new

Clauses and new Schedules relating to, and amendments to, Part 2; remaining new

Clauses; remaining new Schedules; amendments to Parts 3 and 4; remaining

proceedings on Consideration.

6.00 pm on the third day

5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at 7.00 pm on the third day.


I wish to declare, for the purposes of this motion, Report and Third Reading, all relevant disclosures made in the Register of Members’ Financial Interests and the ministerial register. In particular, I mention any interest that I may have as a non-practising solicitor who has not received any payment under the legal aid scheme, and my brother-in-law’s ownership of two claims management companies in which I have no financial

31 Oct 2011 : Column 627

interest. May I also declare any interest I may have in the insurance sector? My investment holdings are in the hands of a blind trust, and although I do not know what they are, I know that they did include—and therefore might possibly still include—a minority share in the Lloyds Djanogly Family LLP and various other insurance and financial shareholdings as declared by me in the Register of Members’ Financial Interests at the start of this Parliament.

I will briefly introduce the motion. First, I wish to thank the Committee members, many of whom are here today, for the robust debate in Committee and the detailed scrutiny that they gave to the Bill. I look forward to their continued input to the debate over the next three days, which I am sure will be as comprehensive and informed as it was throughout our proceedings. In the 18 Committee sittings, we made excellent progress through this very significant Bill. We managed to consider all 119 clauses and 16 schedules without the use of knives or too many late sittings, and we still managed to finish early on the last day. Given that the Opposition called 47 Divisions, that was a particularly impressive achievement.

There are some considerable Government amendments to get through, and I accept that it is unusual to be adding new topics to a Bill at this stage, but the Justice Secretary explained the reason for that in the previous debate. However, three days on Report will provide adequate time to debate the amendments thoroughly. It is unusual to have three days on Report—indeed, this is the first time that this Government have made three days available for debate on Report. I hope that the additional time will be seen as reflecting our ongoing commitment to the thorough scrutiny of the Bill, and that it will be welcomed by all Members on both sides of the House. We have inserted a few knives—namely, on the second day—to ensure that we have proper time to debate the Government’s new clauses on extended determinate sentences, referral fees, fines, self-defence and squatting. I believe that the motion gives the House plenty of time to debate these matters thoroughly, and we look forward to the forthcoming debate.

4.39 pm

Sadiq Khan (Tooting) (Lab): I thank the Minister for his declaration of interest.

My hon. Friend the Member for Rhondda (Chris Bryant) talked about a Christmas tree Bill with baubles being added all the time. The Bill has 120 clauses and 18 schedules. At the eleventh hour, as the Christmas tree is being cut down to be taken to the other place, more baubles are being added: 17 Government new clauses, five Government new schedules and 84 Government amendments. During debate today, tomorrow and on Wednesday, many important issues of substance will arise, which our constituents believe are worthy of debate before a vote: domestic violence; clinical negligence; social and welfare law, including unemployment, debt and welfare housing; the abolition of indeterminate sentences to protect the public; the change in the laws relating to life sentencing and to referral fees; the criminalisation of squatting; the clarification of the law on self-defence; and the new extended determinate sentences. There are also changes in the law relating to disclosure of information, knife crime and bail.

31 Oct 2011 : Column 628

Keith Vaz (Leicester East) (Lab): On knife crime, I do not know whether my right hon. Friend saw the Lord Chancellor’s helpful and entertaining evidence to the Select Committee on Home Affairs when he seemed to reject the idea of mandatory sentences for knife crime for those aged under 18? That was changed within 24 hours. Does my right hon. Friend accept that we need sufficient time to debate that important change? We welcome it, but it would be good to know what is behind the Government’s thinking.

Sadiq Khan: I underscore the important contribution from my right hon. Friend, who chairs the Home Affairs Committee. When we discuss knife crime on Wednesday, we will also discuss legal aid, litigation funding and costs, sentencing, bail, and release and recall of prisoners. The suggestion that we can have anything like the substantive debate that our constituents demand is folly.

The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke): To assist the right hon. Gentleman in his preparation for the debate on knife crime, the Chairman of the Home Affairs Committee will recall that I was particularly hostile to mandatory sentences for young children. The Order Paper includes an amendment tabled by the official Opposition on mandatory six-month sentences for 12-year-olds and above. I do not think anything I said to the Select Committee should encourage the right hon. Member for Tooting (Sadiq Khan) to think I will agree with him when we come to that subject.

Sadiq Khan: If the right hon. and learned Gentleman is so happy to have a debate, why is he so scared? Let us have proper time for the debate. Let us set aside time for it, and discuss the matter. Let us not have knives in the programme motion. Why is he running away? Let us have the debate, at any time, in any place—[ Interruption. ] We have no choice but to press the programme motion to a Division. It is important that the other place sees what happens in this Chamber. The Government claim that they want debate, but when it comes to important issues of huge significance to our constituents, what do they do? They run away.

4.42 pm

Simon Hughes (Bermondsey and Old Southwark) (LD): We should recognise that the Government have been unusually generous in providing more time for Report and Third Reading than I remember under any other Labour or Tory Government. There may be Government amendments that are significant in content and import, but it is partly up to us to ensure that we proceed expeditiously.

As there is a motion on the Order Paper to allow the end of the debate to be put back a bit, would the Government be sympathetic to doing that if we could get through all four groups of amendments by extending our proceedings slightly by, say, half an hour? The last group includes important matters of substance that I hope we reach, because it is important to debate them.

4.44 pm

Mr Djanogly: The right hon. Member for Tooting (Sadiq Khan) mentioned various changes that have been proposed by the Government and the longer Bill

31 Oct 2011 : Column 629

that has resulted. We are not denying that, and that is why we have provided the third day. It was good to see the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) recognising that. The right hon. Member for Tooting says, “Any time, any place,” and that is today, Tuesday and Wednesday.

Question put.

The House divided:

Ayes 292, Noes 209.

Division No. 379]

[4.44 pm

AYES

Adams, Nigel

Afriyie, Adam

Aldous, Peter

Alexander, rh Danny

Amess, Mr David

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Baker, Steve

Baldry, Tony

Baldwin, Harriett

Barclay, Stephen

Barker, Gregory

Baron, Mr John

Barwell, Gavin

Bebb, Guto

Beith, rh Sir Alan

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Binley, Mr Brian

Birtwistle, Gordon

Blackman, Bob

Blackwood, Nicola

Blunt, Mr Crispin

Boles, Nick

Bone, Mr Peter

Bradley, Karen

Brady, Mr Graham

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Steve

Brokenshire, James

Brooke, Annette

Browne, Mr Jeremy

Bruce, Fiona

Bruce, rh Malcolm

Buckland, Mr Robert

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burstow, Paul

Burt, Lorely

Byles, Dan

Cairns, Alun

Campbell, rh Sir Menzies

Carmichael, rh Mr Alistair

Carmichael, Neil

Carswell, Mr Douglas

Chishti, Rehman

Clappison, Mr James

Clarke, rh Mr Kenneth

Clegg, rh Mr Nick

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Colvile, Oliver

Cox, Mr Geoffrey

Crabb, Stephen

Davey, Mr Edward

Davies, David T. C.

(Monmouth)

Davies, Glyn

Davis, rh Mr David

Dinenage, Caroline

Djanogly, Mr Jonathan

Doyle-Price, Jackie

Drax, Richard

Duddridge, James

Duncan, rh Mr Alan

Duncan Smith, rh Mr Iain

Dunne, Mr Philip

Ellis, Michael

Ellison, Jane

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, Michael

Farron, Tim

Featherstone, Lynne

Field, Mark

Foster, rh Mr Don

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Gale, Mr Roger

Garnier, Mr Edward

Garnier, Mark

Gauke, Mr David

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Gillan, rh Mrs Cheryl

Glen, John

Goldsmith, Zac

Goodwill, Mr Robert

Gove, rh Michael

Graham, Richard

Grant, Mrs Helen

Gray, Mr James

Grayling, rh Chris

Greening, rh Justine

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hames, Duncan

Hammond, Stephen

Hancock, Matthew

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Hart, Simon

Hayes, Mr John

Heald, Oliver

Heath, Mr David

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Hendry, Charles

Herbert, rh Nick

Hinds, Damian

Hoban, Mr Mark

Hollingbery, George

Holloway, Mr Adam

Hopkins, Kris

Horwood, Martin

Howell, John

Hughes, rh Simon

Huhne, rh Chris

Hunt, rh Mr Jeremy

Hunter, Mark

Huppert, Dr Julian

Hurd, Mr Nick

James, Margot

Javid, Sajid

Jenkin, Mr Bernard

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, Mr David

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Laing, Mrs Eleanor

Lamb, Norman

Lancaster, Mark

Lansley, rh Mr Andrew

Latham, Pauline

Laws, rh Mr David

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leigh, Mr Edward

Leslie, Charlotte

Letwin, rh Mr Oliver

Lewis, Brandon

Lewis, Dr Julian

Liddell-Grainger, Mr Ian

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Lumley, Karen

Macleod, Mary

Main, Mrs Anne

Maude, rh Mr Francis

Maynard, Paul

McCartney, Jason

McCartney, Karl

McCrea, Dr William

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

McVey, Esther

Mensch, Louise

Menzies, Mark

Mercer, Patrick

Metcalfe, Stephen

Miller, Maria

Mills, Nigel

Milton, Anne

Moore, rh Michael

Morgan, Nicky

Morris, Anne Marie

Morris, James

Mosley, Stephen

Mowat, David

Mundell, rh David

Munt, Tessa

Murray, Sheryll

Murrison, Dr Andrew

Neill, Robert

Newton, Sarah

Nokes, Caroline

Norman, Jesse

Nuttall, Mr David

Offord, Mr Matthew

Opperman, Guy

Patel, Priti

Pawsey, Mark

Penning, Mike

Penrose, John

Percy, Andrew

Perry, Claire

Phillips, Stephen

Pincher, Christopher

Pritchard, Mark

Pugh, John

Raab, Mr Dominic

Randall, rh Mr John

Reckless, Mark

Redwood, rh Mr John

Rees-Mogg, Jacob

Reevell, Simon

Rifkind, rh Sir Malcolm

Robertson, Hugh

Robertson, Mr Laurence

Rogerson, Dan

Rudd, Amber

Russell, Bob

Rutley, David

Sanders, Mr Adrian

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Shelbrooke, Alec

Simmonds, Mark

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Soames, rh Nicholas

Spelman, rh Mrs Caroline

Spencer, Mr Mark

Stanley, rh Sir John

Stephenson, Andrew

Stevenson, John

Stewart, Bob

Stewart, Iain

Streeter, Mr Gary

Stride, Mel

Stunell, Andrew

Sturdy, Julian

Swales, Ian

Swayne, rh Mr Desmond

Swinson, Jo

Swire, rh Mr Hugo

Syms, Mr Robert

Tapsell, rh Sir Peter

Teather, Sarah

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Truss, Elizabeth

Turner, Mr Andrew

Tyrie, Mr Andrew

Uppal, Paul

Vara, Mr Shailesh

Vickers, Martin

Villiers, rh Mrs Theresa

Walker, Mr Charles

Wallace, Mr Ben

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wharton, James

Wheeler, Heather

Whittingdale, Mr John

Wiggin, Bill

Williams, Mr Mark

Williams, Roger

Williamson, Gavin

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Simon

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Ayes:

Greg Hands and

Mr Brooks Newmark

NOES

Abbott, Ms Diane

Abrahams, Debbie

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Ali, Rushanara

Anderson, Mr David

Ashworth, Jonathan

Austin, Ian

Bailey, Mr Adrian

Bain, Mr William

Balls, rh Ed

Banks, Gordon

Barron, rh Mr Kevin

Beckett, rh Margaret

Begg, Dame Anne

Bell, Sir Stuart

Benn, rh Hilary

Benton, Mr Joe

Berger, Luciana

Betts, Mr Clive

Blackman-Woods, Roberta

Blears, rh Hazel

Blenkinsop, Tom

Blomfield, Paul

Blunkett, rh Mr David

Bradshaw, rh Mr Ben

Brennan, Kevin

Brown, Lyn

Brown, rh Mr Nicholas

Brown, Mr Russell

Bryant, Chris

Buck, Ms Karen

Burden, Richard

Burnham, rh Andy

Byrne, rh Mr Liam

Campbell, Mr Alan

Caton, Martin

Chapman, Mrs Jenny

Clark, Katy

Coaker, Vernon

Coffey, Ann

Connarty, Michael

Cooper, Rosie

Cooper, rh Yvette

Corbyn, Jeremy

Crausby, Mr David

Creagh, Mary

Creasy, Stella

Cruddas, Jon

Cryer, John

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Tony

Dakin, Nic

Danczuk, Simon

Davies, Geraint

De Piero, Gloria

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Donohoe, Mr Brian H.

Doyle, Gemma

Dromey, Jack

Dugher, Michael

Eagle, Ms Angela

Eagle, Maria

Edwards, Jonathan

Efford, Clive

Elliott, Julie

Ellman, Mrs Louise

Engel, Natascha

Esterson, Bill

Evans, Chris

Farrelly, Paul

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Fovargue, Yvonne

Francis, Dr Hywel

Gardiner, Barry

Gilmore, Sheila

Glass, Pat

Glindon, Mrs Mary

Godsiff, Mr Roger

Goggins, rh Paul

Goodman, Helen

Greatrex, Tom

Green, Kate

Greenwood, Lilian

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hanson, rh Mr David

Harman, rh Ms Harriet

Havard, Mr Dai

Healey, rh John

Hendrick, Mark

Hepburn, Mr Stephen

Heyes, David

Hillier, Meg

Hilling, Julie

Hodge, rh Margaret

Hodgson, Mrs Sharon

Hoey, Kate

Hopkins, Kelvin

Howarth, rh Mr George

Hunt, Tristram

Irranca-Davies, Huw

Jackson, Glenda

Jamieson, Cathy

Jarvis, Dan

Jones, Graham

Jones, Helen

Jones, Mr Kevan

Jones, Susan Elan

Jowell, rh Tessa

Joyce, Eric

Kaufman, rh Sir Gerald

Keeley, Barbara

Kendall, Liz

Khan, rh Sadiq

Lavery, Ian

Leslie, Chris

Lewis, Mr Ivan

Lloyd, Tony

Llwyd, rh Mr Elfyn

Love, Mr Andrew

Lucas, Caroline

Lucas, Ian

Mactaggart, Fiona

Mahmood, Shabana

Mann, John

Marsden, Mr Gordon

McCabe, Steve

McCann, Mr Michael

McCarthy, Kerry

McClymont, Gregg

McDonagh, Siobhain

McFadden, rh Mr Pat

McGovern, Alison

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

Meacher, rh Mr Michael

Mearns, Ian

Michael, rh Alun

Miliband, rh Edward

Miller, Andrew

Mitchell, Austin

Morden, Jessica

Morris, Grahame M.

(Easington)

Mudie, Mr George

Munn, Meg

Murphy, rh Mr Jim

Murphy, rh Paul

Murray, Ian

Nandy, Lisa

Nash, Pamela

O'Donnell, Fiona

Onwurah, Chi

Osborne, Sandra

Owen, Albert

Perkins, Toby

Pound, Stephen

Qureshi, Yasmin

Raynsford, rh Mr Nick

Reed, Mr Jamie

Reeves, Rachel

Reynolds, Emma

Reynolds, Jonathan

Riordan, Mrs Linda

Robertson, John

Robinson, Mr Geoffrey

Rotheram, Steve

Ruane, Chris

Ruddock, rh Joan

Seabeck, Alison

Sharma, Mr Virendra

Sheerman, Mr Barry

Shuker, Gavin

Skinner, Mr Dennis

Slaughter, Mr Andy

Smith, rh Mr Andrew

Smith, Angela

Smith, Nick

Smith, Owen

Spellar, rh Mr John

Stringer, Graham

Sutcliffe, Mr Gerry

Tami, Mark

Thornberry, Emily

Timms, rh Stephen

Trickett, Jon

Turner, Karl

Twigg, Derek

Vaz, rh Keith

Vaz, Valerie

Walley, Joan

Watson, Mr Tom

Whitehead, Dr Alan

Wicks, rh Malcolm

Williamson, Chris

Winnick, Mr David

Winterton, rh Ms Rosie

Wood, Mike

Woodcock, John

Wright, Mr Iain

Tellers for the Noes:

Mr David Hamilton and

Phil Wilson

Question accordingly agreed to.

31 Oct 2011 : Column 630

31 Oct 2011 : Column 631

31 Oct 2011 : Column 632

31 Oct 2011 : Column 633

Legal Aid, Sentencing and Punishment of Offenders Bill

[1st Allocated Day]

[Relevant Documents: The Third Report from the Justice Committee, on the Government’s proposed reform of legal aid, HC 681, and the Government’s response thereto, Cm 8111]

Consideration of Bill, as amended in the Public Bill Committee

Schedule 1

Civil legal services

4.59 pm

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I beg to move amendment 10, page 99, line 11, leave out from ‘where’ to first ‘for’ in line 13 and insert ‘—

(a) the services are provided to the individual, or

(b) the individual has died and the services are provided—

(i) to the individual’s personal representative, or

(ii) ’.

Mr Deputy Speaker (Mr Nigel Evans): With this it will be convenient to discuss the following: Government amendment 11.

Amendment 91, page 103, line 3, after ‘family’, insert ‘or other intimate’.

Amendment 93, page 103, line 4, at end insert

‘or where an allegation is made that B has been abused by A or is at risk of being abused by A’.

Amendment 23, page 103, leave out lines 35 to 38 and insert—

‘“abuse” means any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.’.

Amendment 92, page 103, line 35, leave out ‘physical or mental abuse’ and insert

‘any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)’.

Amendment 74, page 104, line 23, at end insert—

‘(10) For the purposes of this paragraph, evidence that A has been abused by B or is at risk of being abused by B may consist of one or more of the following (without limitation)—

(a) a relevant court conviction or police caution;

(b) a relevant court order (including without notice, ex parte, interim or final orders) including a non-molestation order, occupation order, forced marriage protection order or other protective injunction;

(c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic violence;

(d) evidence that a victim has been referred to a Multi-Agency Risk Assessment Conference (as a high-risk victim of domestic violence) and a plan has been put in place to protect that victim from violence by the other party;

(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;

31 Oct 2011 : Column 634

(f) a medical report from a doctor at a UK hospital confirming that the applicant has injuries consistent with being a victim of domestic violence, such injuries not being limited to physical injuries;

(g) a letter from a General Medical Council registered general practitioner confirming that he or she has examined the applicant and is satisfied that the applicant had injuries consistent with those of a victim of domestic violence;

(h) an undertaking given to a court that the perpetrator of the abuse will not approach the applicant who is the victim of the abuse;

(i) a letter from a social services department confirming its involvement in connection with domestic violence;

(j) a letter of support or a report from a domestic violence support organisation; or

(k) other well-founded documentary evidence of abuse (such as from a counsellor, midwife, school or witnesses).

(11) For the avoidance of doubt, no time limit shall operate in relation to any evidence supporting an application for civil legal services under paragraph 10.’.

Amendment 94, page 104, line 25, leave out ‘(“A”)’.

Amendment 95, page 104, line 27, leave out ‘other than A’.

Amendment 96, page 104, line 39, at end insert—

‘(1A) Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1).’.

Amendment 97, page 104, line 39, at end insert—

‘(1B) Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances).’.

Amendment 98, page 104, line 39, at end insert—

‘(1C) Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10.’.

Amendment 99, page 105, line 42, leave out ‘to a child’.

Amendment 100, page 105, line 43, leave out first ‘the’ and insert ‘a’.

Amendment 101, page 106, line 1 , leave out first ‘the’ and insert ‘a’.

Amendment 102, page 106, line 3 , leave out first ‘the’ and insert ‘a’.

Amendment 83, page 108, line 44 , leave out sub-paragraphs (5), (6) and (7).

Government amendments 55 to 59.

Amendment 113, page 112, line 5 , at end insert—

‘Immigration: victims of domestic violence and indefinite leave to remain

24A (1) Civil legal services provided to an individual (“I”) in relation to an application by the individual for indefinite leave to remain in the United Kingdom or a claim by the individual to a right to reside in the United Kingdom, on the grounds that—

(a) I was given leave to enter or remain in the United Kingdom for a limited period as the partner of another individual present and settled in the United Kingdom, or had the right to reside in the United Kingdom as the partner of another individual, and

31 Oct 2011 : Column 635

(b) I’s relationship with the other individual broke down permanently as a result of the abuse of I by an associated person.

General exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.

Specific exclusions

(3) The services described in sub-paragraph (1) do not include attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on an application.

Definitions

(4) For the purposes of this paragraph, one individual is a partner of another if—

(a) they are married to each other,

(b) they are civil partners of each other, or

(c) they are cohabitants.

(5) In this paragraph—

“abuse” means any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.

“associated person”, in relation to an individual, means a person who is associated with the individual within the meaning of section 62 of the Family Law Act 1996;

“cohabitant” has the same meaning as in Part 4 of the Family Law Act 1996 (see section 62 of that Act);

“indefinite leave to remain in the United Kingdom” means leave to remain in the United Kingdom under the Immigration Act 1971 which is not limited as to duration;

“present and settled in the United Kingdom” has the same meaning as in the rules made under section 3(2) of the Immigration Act 1971;

“right to reside” means a right of residence established under Directive 2004/38/EC of the European Parliament and the Council 29 April 2004 on the right of citizens of the Union and their family members to move and reside within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EC, 90/365/EEC and 93/96/EEC.’.

Government amendments 60 and 61.

Amendment 145, page 112, line 11, at end insert—

‘(1A) Civil legal services provided to an individual for a matter arising out of any rule laid down under section 1(4) of the Immigration Act 1971 making provision for family members to enter or remain in the United Kingdom as the family member of a refugee or beneficiary of humanitarian protection.’.

Government amendments 62, 13, 14, 63, and 15 to 18.

Amendment 103, page 7, line 35, at end insert—

‘(7) But the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse;

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purpose of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse,

and in this subsection “domestic abuse” means abuse of the kind to which paragraph 10(1) of Schedule 1 relates’.

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Mr Djanogly: This rather substantial group of Government and Opposition amendments concerns legal aid for family and immigration matters, including domestic violence issues, as well as certain technical amendments to the Bill. I shall begin with a group of technical Government amendments, before moving on to the family and immigration ones.

Government amendments 10, 11, 13 and 14 amend paragraphs 3 and 33 of part 1 of schedule 1 in order to ensure that funding can be granted to the personal representative of a deceased child, vulnerable adult or victim of a sexual offence who wishes to pursue a civil claim for the benefit of the estate. The amendments are necessary because the Bill, as currently drafted, would limit legal aid to the child, vulnerable adult or victim personally. Where that individual dies, it is clearly right that legal aid should remain available to that individual’s personal representative to pursue a relevant claim on behalf of their estate. It is not necessary to make equivalent changes to other paragraphs in part 1 because relevant paragraphs do not exclude claims being brought by a personal representative. For other paragraphs, the case would either fall away with the death of a claimant or there would be another party who would be equally able to bring the claim.

Government amendments 15 to 18 relate to vetting and barring under section 4 of the Safeguarding Vulnerable Groups Act 2006 and applications relating to disqualification orders under sections 31 and 34 of the Criminal Justice and Court Services Act 2000. The amendments are technical and seek to ensure that funding for advocacy is provided in the relevant tribunal or court for these types of cases. In our consultation paper, “Proposals for the Reform of Legal Aid in England and Wales”, we announced our intention to retain civil legal services for section 4 of the Safeguarding Vulnerable Groups Act, which provides for a right of appeal to the upper tribunal against a decision to keep someone on a barred list from regulated activity relating to children or adults. The consultation paper provided that we would continue to fund those types of appeals to the upper tribunal on the basis that inclusion on a list would have a significant and lasting impact on the life and livelihood of an appellant who might have been included on the list in error.

Mr Jim Cunningham (Coventry South) (Lab): Has the Minister made an assessment of the amendments’ impact on organisations in Coventry such as the citizens advice bureau and the law centre?

Mr Djanogly: I expect the amendments to be generally well received.

The Bill currently refers to funding for advocacy being available in the first tier tribunal, and amendments 17 and 18 correct that position by making available funding for advocacy for appeals to the upper tribunal. Amendments 15 and 16 serve a similar purpose but in relation to sections 31 and 34 of the Criminal Justice and Court Services Act. Appeals under section 31 are to the Court of Appeal, rather than the first tier tribunal, and funding for advocacy for such appeals is already covered by paragraph 2 of part 3 of schedule 1. Appeals under section 34 are to the High Court, and funding for advocacy for such appeals is already covered by paragraph 3 of part 3 of schedule 1.

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I now turn to the family and domestic violence amendments, almost all of which have been debated in Committee already. I would like to reiterate why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid, as it stands, is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary applications to carve up family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will, therefore, remain available for mediation in private law family cases, and we estimate that we will spend an extra £10 million a year on mediation, taking the total to £25 million a year.

Sheila Gilmore (Edinburgh East) (Lab): Does the Minister not accept that in many cases where people are separating or divorcing, there is an imbalance of power, whether financial or emotional, and that mediation is simply not suitable for many such cases?

Mr Djanogly: I certainly accept that there will sometimes be an imbalance, and in relation to court proceedings themselves, we are proposing other measures—the ability for a judge to give interim orders, for instance—aimed at redressing that imbalance. However, I also accept the hon. Lady’s suggestion that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family law cases where there is evidence of domestic violence or where a child is at risk of abuse.

Joan Ruddock (Lewisham, Deptford) (Lab): I want briefly to read to the Minister what my constituent Lucy Abell has written to me:

“I work with single parents every day in my job…and know how desperately vulnerable a lot of people are when they are going through an acrimonious separation. The outcomes of children and families are very dependent on what happens during this time, and I find it incredible that the Government thinks these changes will save the government money in the long term.”

She works for Gingerbread and sees such people all the time. She is convinced that what the Government are doing will be terribly damaging for children of those single parents.

Mr Djanogly: I am not entirely sure whether the right hon. Lady is talking about all cases of divorce or partners separating, or just those where there is domestic violence. However, I can tell her that in 90% of cases where there is a separating of the ways, the couple will reach an agreement. We are therefore talking about the remaining 10%. What we are saying in terms of policy is that for basic divorce—if divorce can ever be basic—people should not rely on legal aid for carving up the family assets or settling contact issues. However, I want to make it clear that funding for victims of domestic violence who seek a protective order will remain available.

Sir Alan Beith (Berwick-upon-Tweed) (LD): Is it not also important to point out that the family courts have great difficulty dealing with contact issues, many of

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which are naturally unsuited to such treatment? Frankly, it is not very easy for a court to sort out arguments about whether a child can go to the scout group on a Friday night or whether they have to be with the other parent.

Mr Djanogly: My right hon. Friend makes an important point. I can tell him and other hon. Members that it has become clear to me, from my many meetings over the last year and a half with mediators and lobby groups such as those already mentioned, that in the vast majority of cases the parties are better off sorting out their problems together with the help of the mediator. For the most part, mediation is empowering. In most cases, the best way forward is for people to be able to sort out their own futures and those of their children without being told what to do by a judge, and that is what the Government support.

Kate Green (Stretford and Urmston) (Lab): I want to ask the Minister about cases where domestic abuse or violence per se is not present, but where conflict between the parents none the less makes it simply impossible for mediation to work effectively. In the interests of children, will the Minister consider extending legal aid in those circumstances, so that where a mediator knows that mediation simply could not work, the parents will still receive advice?

Mr Djanogly: The Government have changed the law through a pre-action protocol. The position from this April has been that where a divorce application is made, the parties have to see whether mediation is appropriate, as has been the case with publicly funded divorce cases. That does not, I hasten to add, mean that the parties have to go to mediation; however, they have to be assessed to see whether mediation is appropriate. I can tell the hon. Lady that the initial findings are very positive indeed. We have adequate mediators, with more than 1,000 mediation units around the country, and all are reporting a significant upturn in business, which is a positive outcome.

Kate Green: I agree with the Minister about the desirability of mediation wherever it can work best for all the parties. We would all like appropriate mediation to be used as much as possible in such cases, but will he clarify what he just said? Where a couple is found unsuitable for mediation because of the conflict between them, but where violence or abuse is absent, will they be able to access legal aid?

Mr Djanogly: I am afraid that the hon. Lady misunderstands the nature of mediation. In normal circumstances, it is not for the mediator to sit in judgment on the individuals who turn up for mediation. That happens in the assessment. The mediator should explain to the individuals the purpose of mediation and it is for the individuals themselves to decide whether mediation is appropriate. If violence was involved, the mediator might suggest that, in those circumstances, mediation is not appropriate. If domestic violence is involved, the Government believe that legal aid should be provided.

Mr Jim Cunningham rose

Joan Ruddock rose

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Susan Elan Jones (Clwyd South) (Lab) rose

Mr Djanogly: I shall give way one more time on this point—to the hon. Member for Coventry South (Mr Cunningham).

Mr Cunningham: I want to be helpful to the Minister. Can he clarify how the amendments on legal aid would apply, for example, to rape crisis centres such as the one we have in Coventry? I am not too clear about how that will be affected.

Mr Djanogly: The Government are supportive of crisis centres. We have increased our provision for them. The amendments do not in any way affect the issue one way or another. That is a separate policy item.

Joan Ruddock: Will the Minister give way?

Mr Djanogly: I really must make some headway. If the right hon. Lady will give me a few minutes, I might allow her to intervene again.

We will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, as with a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. We will still spend an estimated £120 million a year on private family law, including on domestic violence, after our proposed changes. This includes funding for about a quarter of the private family law cases that currently receive legal aid to go to court. We expect to continue to fund them where domestic violence or child abuse results from those cases.

Amendments 92 and 23 would put parts of the definition of domestic violence used by the Association of Chief Police Officers on the face of the Bill in paragraph 10 of schedule 1 in place of the existing definition of abuse. Identical amendments were debated in Committee. The existing definition of abuse used in the Bill is a broad and comprehensive one, explicitly not limited to physical violence. It is used elsewhere in paragraph 3 of schedule 1, which provides for legal aid to be available in relation to abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse. Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others—lest confusion should result.

Caroline Lucas (Brighton, Pavilion) (Green): Will the Minister explain why a different definition is being used here from that used in other Home Office and Ministry of Justice documents? A lot of concern has arisen among women’s organisations that there is an agenda here; we would love to know what that agenda is.

Mr Djanogly: If the hon. Lady will allow me to get on, I will clarify precisely that.

The definition should also be seen in the light of the Bill’s structure and the purpose of the paragraph in which it appears. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subjected to domestic violence by the other party and is likely to be intimidated or otherwise disadvantaged in presenting his or her case

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should, as a result, be able to have access to legal aid. It does not provide that any individual who has been the subject of, or who 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 the paragraph is intended to address. It establishes a description of legal services and whether an individual qualifies for those services in any specific case. It requires that an individual not only falls within the category in paragraph 10, but meets the criteria to be established in regulations made under clause 10.

Helen Goodman (Bishop Auckland) (Lab): We raised with the Government a couple of months ago the possibility of seeing the regulations in draft before reaching this Report stage. Many Members feel that that would have aided our consideration of these provisions. Why has the Minister not produced those regulations?

Mr Djanogly: Because the Bill and relevant clauses are still going through the House and still have to go through the other place. The regulations will be produced once the Bill comes into law.

Those criteria will set out the specific requirements on evidence of the fact of abuse or the risk of abuse. The definition of abuse itself is therefore only a preliminary part of the picture. In that sense, it might be argued that it makes little difference whether definition takes one form or another arguably rather similar form. However, we are still not convinced that the definition should be changed in the way suggested in the amendments.

5.15 pm

The definition in the Bill embraces mental as well as physical abuse, neglect, maltreatment and exploitation. Those references would cover, for example, abusive behaviour relating to the family finances. 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, and this part of the amendment is unnecessary. The amendment is, however, also potentially misleading. It would take a definition intended as a very wide operational net to catch behaviour that should not be disregarded and should be investigated —although it may emerge from the investigation that no action is called for—and place it in a context that is inevitably after the fact and directed to the effects of the behaviour in subsequent proceedings.

Mrs Helen Grant (Maidstone and The Weald) (Con): Does the Minister not accept that the fact that the definition is not specific has the potential to create some uncertainty, and that uncertainty, especially at the beginning of court proceedings, will create even more hardship for the victim, which may well lead to litigation in itself? Is it not possible to be more precise, so that people need not worry about what is and what is not acceptable?

Mr Djanogly: I shall be discussing that in a little more detail, but I would answer my hon. Friend’s more general point that the definition could make things harder for a court by saying that the court will in any event have to take a view at some point

Mrs Grant rose—

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Mr Djanogly: If my hon. Friend will let me finish, I will allow her to intervene again later.

The reference to “any incident”, for example, 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 generally feel inhibited about pursuing litigation against the other party. That would not reflect the underlying intention, nor would it be the effect in practice if the regulations required certain forms of proof. The touchstone for whether a party obtains funding must be whether the abuse was such as to inhibit their ability to present their case against the other party. The circumstances that will be accepted as evidence of the abuse will turn on the application by courts, prosecutors and other agencies of their existing criteria. It is when the courts and others have determined that the level of the abusive conduct is such that protective action or prosecution is necessary that legal aid will be available.

Joan Ruddock: Given that the purpose of all this is to save money, I must assume that the definition in the Bill means that the Minister expects women, or occasionally men, who would formerly have pursued such domestic violence cases not to pursue them, and not to be eligible. Has he made an estimate of the likely reduction in legally funded cases?

Mr Djanogly: I am happy to confirm that this particular definition is not directly related to saving money. It is there because it is a definition that works.

Amendment 23 goes beyond amendment 92 in referring also to the relationship between those involved. It would cover

“intimate partners or family members, regardless of gender or sexuality.”

This part of the amendment is superfluous, because it duplicates sub-paragraph 7 of paragraph 10 of the schedule. The sub-paragraph relies on the definition of associated persons in the Family Law Act 1996, which is wide, and covers the relationships set out in the amendment and more.

Amendment 91 also concerns the relationship between those involved. The Bill provides for legal aid to be available to victims of domestic violence for matters

“arising out of a family relationship”.

The amendment would change the phrase “family relationship” to “family or other intimate relationship”. It is unnecessary for the same reason as amendment 23. Paragraph 10(7) of the schedule defines a family relationship as one between persons who are associated with each other. The definition of “associated persons” in the 1996 Act, on which that paragraph relies, includes two people who

“have or have had an intimate personal relationship with each other which is or was of significant duration”.

The wording of the amendment therefore appears to add nothing.

Amendments 103 and 74 both 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. Very similar amendments were debated in Committee, and in this case I can say to the right hon. Member for Lewisham, Deptford (Joan Ruddock) that there would be economic

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consequences. We want genuine victims of domestic violence to have the benefit of legal aid in such cases, when they would be disadvantaged by facing their abuser as the other party. However, during consultation we have heard many concerns that the proposal in the amendments could lead to a rise in unfounded allegations, and we want to guard against that.

Susan Elan Jones: Organisations such as the National Federation of Women’s Institutes and Women’s Aid declare that they are very concerned about the Government’s proposals, so why does the Minister think he is right and they are wrong?

Mr Djanogly: Because I and the Government consulted at some length on the proposals and received a lot of positive responses. As a result of that consultation we broadened the definition concerned, so we have listened. Indeed, we have tabled a further amendment today in relation to immigrants to broaden it even further.

Mr Andy Slaughter (Hammersmith) (Lab): I hope the Minister accepts that, although amendment 74 and other amendments would enlarge the evidential tests, they would still require a degree of evidence to be given. That evidence may not come from such limited places as he wants, but it may be from GPs or women’s refuges. Yet he is saying that he cannot accept such evidence, because it would be part of “unfounded allegations”. Is he suggesting that those organisations collude in false allegations?

Mr Djanogly: The hon. Gentleman makes a frankly ridiculous comment. He mentioned GPs, and of course a GP is qualified to tell whether someone has been subject to violence. However, they are not always well qualified to tell whether someone has been subject to domestic violence, because they may not have seen the circumstances in the home and may be looking only at the injury of the party coming to their surgery. The Government are looking for objective evidence.

Mr Slaughter: I would like the Minister to respond to my question. As the tests in question are evidential tests, not subjective or self-referred, does that support his point about false allegations? Evidence from GPs is commonly used to support cases in criminal trials, including sometimes when a woman is unwilling to give evidence herself because she is intimidated or in fear.

Mr Djanogly: The hon. Gentleman makes the exact point that I would have made in response to him. Evidence is used in a trial, but the GP does not make the decision, he gives evidence. We see the trial as being the objective evidence, and that is what we suggest in the Bill.

Mr Robert Buckland (South Swindon) (Con): My hon. Friend makes proper points about the need for courts to make findings of fact. Does he accept, however, that there is a potential problem with regard to undertakings? In proceedings in which undertakings could be a way of sorting out the problem satisfactorily, those advising the parties involved could prejudice their clients’ ability to obtain legal aid in future if domestic

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violence rears its ugly head again. Will he look again at how we can manage those circumstances so that people are not put in that potentially prejudicial situation?

Mr Djanogly: I am happy to consider the particular circumstances that my hon. Friend mentions on the subject of undertakings, but again we are talking about a situation that does not involve an objective test. It would be down to the word of the two people making the undertaking. In certain circumstances that may be correct, but in others it may not.

Sandra Osborne (Ayr, Carrick and Cumnock) (Lab): I worked with Women’s Aid for 16 years, and the Minister is taking us back decades by perpetrating myths about domestic violence that we thought we had seen the end of 30 years ago. Does he not understand that women who are subjected to domestic violence are, by definition, captive victims and there is no one else in the room? To say that they are not going to be believed is taking us back decades. Will he look at this again?

Mr Djanogly: Everything the Government have said, and every action we have taken, shows that we take domestic violence extremely seriously. To some extent, the hon. Lady and other hon. Members are approaching this issue from the wrong direction in that they begin by addressing domestic violence, but that is not the right starting point. The starting point for the Government is that we are removing legal aid for private family law, but we are keeping it for domestic violence, as that is of the utmost concern to us. My point, however, is that we need to have objective evidence of domestic violence so that we target taxpayers’ money on genuine cases where the victim needs assistance because they are intimidated or otherwise disadvantaged by the fact of facing the abuser in the proceedings.

Sheila Gilmore: Will the Minister give way?

Mr Djanogly: I shall make a little more progress first.

The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, they will be set out in regulations under clause 10. We believe it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation as it can be amended to respond to particular issues that may arise during the operation of the scheme.

In the consultation, we suggested what might be the forms of evidence of domestic violence, and we listened to the views expressed on that in response. As a result, we have widened the range of forms of evidence, and, furthermore, only one of the forms of evidence would be needed. Legal aid will be available for victims of domestic violence in private family law cases where one of the following criteria is met: where a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party is in place or has been made in the last 12 months; there is a criminal conviction for a domestic violence offence committed by the other party against the applicant for funding, unless the conviction is spent; there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding; the applicant for funding has been referred to a multi-agency risk assessment conference as a high-risk

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victim of domestic violence, and a plan has been put in place to protect them from violence by the other party; there has been a finding of fact in the family courts of domestic violence by the other party, giving rise to a risk of harm to the victim.

Kate Green: Will the fact that there is, for example, a non-molestation order be taken as evidence of suitability for legal aid in family proceedings, and will legal aid be available to enable a victim of domestic violence to get such an order?

Mr Djanogly: Yes, it will be. The hon. Lady makes a very important point, which has come up in consultation and has often been misconstrued. For such individuals, legal aid will be provided for the application for a non-molestation order, for example.

It might be helpful if I give an idea of the prevalence of these forms of evidence. About 24,100 domestic violence orders were made in 2010, about 74,000 domestic violence crimes were prosecuted in 2009-10 and there were 53,000 domestic violence convictions. Further, about 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months to June 2010.

Helen Goodman: Surely the Minister can see that there is a 21,000 gap between the numbers of those prosecuted and those convicted? Surely he is also aware that the Crown Prosecution Service goes ahead with prosecutions only when there is a reasonable expectation of success in the case? Surely, therefore, he can see that we are not dancing on the head of a pin, as we are talking about 21,000 women every year?

Mr Djanogly: Those numbers may overlap to some extent; in other words, someone might not have been prosecuted as there may have been a civil injunction, or perhaps a multi-agency risk assessment conference made the decision.

The forms of evidence we intend to accept will meet a high standard of objectivity. We are concerned that many of the additional forms of evidence suggested in the amendments would rely on the word of those involved and would provide an incentive for allegations where none currently exists. Let me make it clear that I am not questioning the integrity of genuine victims. However, during the legal aid consultation many people were concerned about providing an incentive for unfounded allegations, and the Government share that concern.

5.30 pm

Mrs Grant: Post-separation violence is very common in domestic violence cases. I am concerned that there is a 12-month time limit on the gateway criteria for family law matters, which means that if the violence occurs after that period many highly vulnerable women and children could fall through the net.

Mr Djanogly: That relates to amendment 74. I am going to deal with it and I am sure that my hon. Friend will be pleased with the answer I will give her.

Accepting self-reporting without objective evidence would prevent us from effectively focusing assistance on victims of domestic violence who were unable effectively

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to present their case against the other party because of the history or risk of abuse by that party. Both amendments refer to evidence from professionals in a variety of roles. I explained that we have widened our criteria so that legal aid will be available where the victim has been referred to a multi-agency risk-assessment conference as a high-risk victim of domestic violence and a plan has been put in place to protect them from violence by the other party. Such referrals can be made by a range of professionals. Furthermore, a finding of fact in the family courts that domestic violence has occurred will trigger legal aid, and a court will be able to assess any relevant evidence.

Amendment 74, to which my hon. Friend referred, would prevent a time limit from applying to any evidence. We have said that a 12-month period, where relevant, will apply. We consider that 12 months will be an appropriate period to protect victims and to enable them to deal with their private family law issues. However, if the criteria were to arise again—for instance, if a second protective injunction is made—the time period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to the breach of an individual’s rights under the European convention on human rights, particularly article 6.

Sheila Gilmore: Will the Minister explain how the individual achieves the finding of fact in a family court in order to trigger legal aid if they cannot get legal aid to take proceedings in a family court?

Mr Djanogly: The answer is that they can get legal aid to take those proceedings.

Amendment 93 would provide for legal aid to be available for any party in a private family law case who has been the subject of allegations of domestic violence or the risk of domestic violence. We debated an identical amendment in Committee. In considering whether alleged perpetrators should receive legal aid in these cases it is important to remember that we are seeking to protect the most vulnerable in society. Alleged perpetrators would not necessarily fall into that category in the way a victim of abuse would. Furthermore, allegations would not meet the test of clear, objective evidence that would otherwise apply in these cases. Accepting such an amendment would be likely to cost tens of millions of pounds in savings, without achieving the objective of targeting legal aid on those most in need.

I turn to the other amendments relating to private law children cases, such as disputes about custody, where a child is at risk of abuse. These are amendments to paragraph 11 of schedule 1, which provides for legal aid to be available in such cases for the party seeking to protect the child, where there is objective evidence of the risk of abuse. Again, identical or near-identical versions of the amendments were discussed in Committee.

Amendment 96 would provide for applications for financial provision for children to be in scope for legal aid where the child is the subject of one or more of the measures listed in sub-paragraph 11 (1) of schedule 1. The list of orders in that sub-paragraph is intended to cover orders and procedures used to secure protection, and it includes orders under section 8 of the Children

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Act 1989, which may be used in that way, including contact and residence orders. The effect of amendment 96 would be that applications for maintenance or other financial provision for a child would be in scope whenever a contact or residence order has been made in relation to that child, regardless of any need for protection. The original legal aid proposals were silent on the issue of children at risk of abuse in private law children cases.

We have listened to the concerns raised during the consultation on this point. For example, one party might be seeking an order to bar an abuser from unsupervised contact with a child. We agree that child protection is of paramount importance and we recognise that it would be difficult for the protective party to act in person in cases of potential complexity and heightened risk to the child requiring prompt and clear action. This is a separate rationale to a situation in which the adult has been subject to abuse such that he or she cannot be expected to represent themselves against their abuser.

We do not consider that cases concerning financial provision are of equal priority and nor do they raise the same issues. Financial matters are of lower objective importance than child protection and we would not expect the protecting party to encounter the same level of complexity—still less risk—or need for urgent protective action in a case about financial provision. Furthermore, the person presenting the risk of abuse might not be the other party in the financial provision proceedings. Although protecting a child from abuse is clearly of high importance, it is not appropriate that in a case for financial provision, which is a separate matter from the consideration of protective measures, a distinction should be drawn between maintenance for children considered at risk of abuse and maintenance for other children.

Amendment 97 would bring into the scope of legal aid the entirety of any proceedings in which the court was considering whether to direct the local authority to investigate the circumstances of the child. Under section 37 of the Children Act 1989, the court may make such direction if it appears that it might be appropriate for a care or supervision order to be made. The amendment appears to be unnecessary and, in any event, goes too far. Under paragraph 1 of the schedule, legal aid will be available for public family law cases such as care and supervision proceedings, as at present. We believe that the state should ensure that families are able to challenge decisions made by public authorities about the provision of care for children.

Directions under section 37 of the 1989 Act are considered to be public family law matters for legal aid purposes because they relate to care and supervision orders under paragraph 1(1)(b) of schedule 1. Funding is therefore available in relation to section 37 issues. There is no reason, in principle, why a case could not be adjourned briefly in such a situation to allow the parties to seek a legal aid lawyer for the section 37 issue if that were warranted. Providers are able to use devolved powers to grant immediate funding in emergency situations, subject to means and merits-testing.

Amendment 98 also references section 37 directions and would bring into scope any private family law proceedings that involve a child in respect of whom a direction under section 37 of the 1989 Act had been given, regardless of the outcome of that section 37 investigation. That is a broad proposition that I do not think can be justified.

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Geraint Davies (Swansea West) (Lab/Co-op): May I ask why the Minister is discussing amendments that have not been selected by the Speaker? He seems to be referring to amendments 98 and 97.

Mr Djanogly: Amendments 94 to 102 have been selected.

Under amendment 98, a section 37 direction, regardless of the outcome of the investigation, would trigger funding for all parties in any private law family proceedings in which the child was involved. A section 37 order in itself does not mean that the child is at risk of abuse. The local authority staff could conclude, once they had completed their investigation, that the child was not at risk and that no further action was needed. If the local authority concluded that action was needed, it would put a child protection plan in place. As I have said, legal aid will be available in private law children cases in which a child is at risk of abuse for a party seeking to protect the child where there is objective evidence of the risk of abuse. A child protection plan will be accepted as objective evidence in criteria that will be set out in regulations under clause 10. That means that if a local authority put such a plan in place, that would trigger funding for the party seeking to protect the child.

Providing for legal aid to be available for any family proceedings involving the child, as amendment 98 would do, would mean that legal aid would not be targeted on proceedings about protection of the child, but could be available for proceedings that might not concern protection at all. For example, a case about financial relief for the parents could be covered if an application were made for financial relief for the child. Given that the words “involving a child” do not give much indication of how closely the child needs to be concerned, it might even be that a case between the parents about a matter that did not directly concern the child was included.

Amendment 98 would also provide for legal aid to be available for all parties to the proceedings. We intend to target funding on the protecting party. Where a party is not the person taking action to protect a child from abuse, the same level of importance and risk would not apply.

Amendments 94 and 95 would also widen the availability of legal aid under paragraph 11 beyond the parties seeking to protect the child. That would mean that legal aid would be available for the other party in private law children cases where a child is at risk of abuse. As I have explained, we decided to keep those cases in scope for the protecting party because protecting children from abuse is paramount. Where a party is not the person taking action to protect a child from abuse, the same level of importance and risk would not apply.

The tests we wish to use to determine the availability of legal aid in these cases are designed to be as objective as possible and to minimise the risk of false allegations. The tests are: where there is a criminal conviction or ongoing criminal proceedings for a child abuse offence; where a local authority has put a child protection plan in place to protect the child; or where there is a relevant finding of fact by the family courts that child abuse has occurred. They will provide clear and objective evidence of the risk of abuse. However, if the particular facts of an individual case mean that failure to provide legal aid for both parties would be likely to result in a breach of

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the individual’s rights under the Human Rights Act or European Union law, exceptional funding would be available.

I turn now to amendments 99 to 102, which seek to retain legal aid provision for all parties in private family cases where the court has made a child a party to proceedings. Identical amendments were debated in Committee. The Government intend to retain legal aid for a child who is a party in these circumstances. However, as we made clear in Committee, we do not accept that, where a child requires representation, adult family members should as a matter of routine also be given legal aid. There are a variety of reasons for a child to be a party, and not all will involve the complexity of a case. In cases where a child is represented, it does not follow that the case will necessarily be so complex or that the child’s involvement will render the case so complex or difficult as to require representation for all parties.

By their nature, some of the cases will be complex, and we recognise that in some circumstances people will be unable to represent themselves, but we think that those cases will be the exception. The exceptional funding arrangements will ensure that legal aid will be available where required. A failure to provide legal aid in cases where people genuinely could not represent themselves would be likely to breach an individual’s right to legal aid under the Human Rights Act or EU law.

I turn now to the immigration amendments, which include technical Government amendments, Government and Opposition amendments relating to domestic violence immigration cases and other amendments seeking to widen the scope of legal aid for refugee family reunion matters and immigration judicial review cases. Government amendments 61 and 62 will amend paragraph 25(1) of part 1 of schedule 1 to correct an omission in the meaning of asylum in the Bill. That will ensure that persons who make a claim to enter or remain in the UK based on the EU qualification directive are eligible for legal aid. Government amendment 60 will make a similar change to paragraph 25 to cover claims based on article 2 of the European convention on human rights, which sets out the right to life. Although most claims for asylum will be made on the basis of the 1951 refugee convention or article 3 of the European convention on human rights, the amendment will allow funding for cases involving execution and the death penalty; serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict; and unlawful killing.

Government amendments 55 to 58 clarify the wording of paragraph 17(7) of part 1 of schedule 1 with regard to the exceptions from scope to the exclusion of certain types of immigration judicial review proceedings. Amendments 55 and 56 will amend paragraph 17(7)(a) to clarify that the exception applies only to a judicial review of a negative decision in relation to an asylum application where there is no right of appeal to the first-tier tribunal against the decision. Amendments 57 and 58 will amend the exception in paragraph 17(7)(b) to add a reference to section 94 of the Nationality, Immigration and Asylum Act 2002. Section 94 allows the Secretary of State to issue a certificate on a number of different grounds, for example when an asylum claim is clearly unfounded. The certificate prevents an appeal to the first-tier tribunal being brought while an individual is in the UK. The amendments clarify the position and ensure that the policy is given effect.

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Amendment 83 seeks to maintain within legal aid civil funding certain immigration judicial review cases that are very likely to be without merit. We debated an identical proposition in Committee. These are cases that either have already had a hearing on the same, or substantially the same, issue within a period of one year, or are judicial reviews of removal directions where there is less than one year between the giving of the direction and determination of the decision to remove. In response to our legal aid consultation, the Judges Council highlighted the large number of immigration judicial reviews that were without merit and, in effect, clog up the system. Only a minority of those would receive legal aid. As we made clear in Committee, the Government’s view is that it is wrong in principle for such cases to remain within the scope of funding.

5.45 pm

The first category of case that we intend to remove from the scope of funding is one in which there has already been at least one appeal before the tribunal, or another judicial review within the last year, on the same or substantially the same issue. Judges in immigration judicial reviews too often see attempts to litigate on the same points again and again, essentially to string out the removals process, and we do not think that taxpayer funding should be available in such instances.

The second category relates to judicial reviews of removal directions, rather than the underlying direct decision. Such proceedings are often brought at the last minute, sometimes as people are literally being put on a plane, and again they are essentially designed to frustrate the removals process. Similarly, we do not think that the UK taxpayer should be asked to foot the bill for such claims.

There will of course be some genuine although unusual cases in those categories, and they would still in principle warrant legal aid. That is why we have made exceptions to our proposed exclusions, and they take into account principally the potential for changes in an individual’s circumstances over time.

In both categories, the exclusion would be subject to a one-year time limit. Judicial reviews of a refusal by the Secretary of State to treat a claim for asylum as a fresh claim—one with new facts or circumstances—would also be retained by making sure that when there was a possibility that there had not already been an opportunity for appeal, legal aid for judicial review would still be available, subject to the normal means and merits test.

As we said in Committee, we are retaining legal aid for most judicial reviews, immigration or otherwise. We accept that an individual’s ability to hold the state to account is an important principle, but when it has been abused, combined with the need to target resources effectively, we think that removing legal aid from those discrete categories of cases is justified, especially with the safeguards that I have set out.

Michael Connarty (Linlithgow and East Falkirk) (Lab): In the analysis of the evidence of the number of cases that actually had used judicial review to have another review that then turned out to be supported in the courts, does the Minister have actual figures to justify his blanket removal?

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Mr Djanogly: We do have figures, but I do not happen to have them with me. I will write to the hon. Gentleman with figures. Most judicial review cases are funded privately rather than through legal aid, however, and I say that because I have seen the figures, and one needs to know that to understand them.

Government amendment 59 would amend part 1 of schedule 1 to bring domestic violence immigration rule cases into the scope of legal aid, as I announced to the Public Bill Committee on 19 July.

Government amendment 63 would amend part 3 of schedule 1 to ensure that civil legal aid was available for the advocacy of such cases in the first-tier tribunal. Advocacy will also be available in the upper tribunal by virtue of paragraph 14 of part 3.

Under the domestic violence immigration rule, someone on a spousal visa, which is valid for a limited period of time, and whose relationship has permanently broken down as a result of domestic violence, can apply for indefinite leave to remain in the United Kingdom. As I said in Committee, we accept that these cases are very unusual and different from other immigration cases, given the real risk that without legal aid spouses will stay trapped in abusive relationships for fear of jeopardising their immigration status. The trauma that they may have suffered will often make it very difficult to cope with that type of application, and they are also under time pressure, because they have only limited access to public funds to avoid destitution, so for those reasons we seek to make these amendments to schedule 1.

Amendment 113 adopts the same wording as the Government amendment I have just discussed, but with two differences—one that I am happy to look at further, and one that I think is unnecessary. First, the amendment would include within the scope of funding, civil legal services provided to an individual in relation to a claim by the individual to a right to reside in the United Kingdom, as well as an application for indefinite leave, when their relationship had broken down permanently as a result of domestic violence. EEA nationals and their spouses or partners, if from a third country, have a long-term right to reside in the UK if they are economically active or able to support themselves without becoming an unreasonable burden on public funds.

The Immigration (European Economic Area) Regulations 2006 make provision for third country nationals in such relationships to remain in the UK—that is, their right to reside can continue—if their relationship breaks down as a result of domestic violence. The application is different for those people who apply under the domestic violence immigration rule for indefinite leave to remain. The rules that apply are different. However, I am sure that the hon. Member for Hammersmith (Mr Slaughter) will be pleased to hear that we are looking further at such cases.

Amendment 113 seeks to replace the definition of abuse adopted in the Government amendment and used elsewhere in part 1 of schedule 1 to the Bill with the definition of domestic violence used by the Association of Chief Police Officers. The existing definition of abuse used in the Bill is a broad and comprehensive one, explicitly not limited to physical violence, and it would cover mental as well as physical abuse, neglect, maltreatment and exploitation. Indeed, it would not exclude from scope any of the types of abuse covered by the definition used by ACPO. Furthermore, the proposed definition

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of abuse would cover intimate partners or family members, regardless of gender and sexuality. That part of the amendment is superfluous, as the proposed Government amendment relies on the definition of associated persons in the Family Law Act 1996, which is a wide one that would cover the relationships set out in the amendment, and more. The second change proposed in amendment 113 is therefore unnecessary, but we will look at the first. I hope that hon. Members will be reassured by that.

Amendment 145 seeks to bring family reunion cases back into the scope of legal aid, at a cost of about £5 million a year. Those cases involve a person who has been granted asylum or refugee status and who sponsors the applications of their immediate family to join them. They are immigration applications, rather than asylum ones, and they are generally straightforward. The UK Border Agency guidance on these cases sets out the presumption of the granting of an application if the relevant criteria are met. The evidence required, such as marriage and birth certificates, should not require legal assistance to collate. The entry clearance officer may, on occasion, ask for DNA testing to prove the family relationship, but that testing would be free of charge to the applicant. These cases should not require specialist legal advice, and it is not therefore necessary for them to remain within the scope of civil legal aid.

Simon Hughes (Bermondsey and Old Southwark) (LD): My office handles a lot of asylum and immigration cases, and of course some of them are entirely straightforward, as the Minister has suggested. Does he accept, however, that some family reunion cases are definitely not straightforward? They might involve a child being in a different country from the mother, or someone not having a passport. There could also be real issues involved in proving the relationship. Will he look again at the opportunity for some cases—I am not arguing for the generality—to be eligible for legal assistance?

Mr Djanogly: I certainly agree with my right hon. Friend that some immigration cases are complex, and I think that the point that he has raised is one for me to look at after today. I will do so, and I will come back to him on that.

On the basis of everything that I have just set out, I therefore urge the House to support Government amendments 10, 11, 13 to 18 and 55 to 63. I also hope that right hon. and hon. Members will be reassured by what I have said about the other amendments.

Mr Slaughter: I shall try to be a little briefer than the Minister—[Hon. Members: “Hear, hear!”] I was about to say that I was going to make some preliminary remarks, but the last time I did that they went on for three hours. I shall address my comments almost exclusively to amendment 74, which stands in my name. The Opposition also fully support amendment 23, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), which deals with the related matter of domestic violence. I give notice that we hope to press amendment 74 to a vote later this evening.

The Minister was slightly dismissive when he said that a number of the amendments on domestic violence had been dealt with in similar terms in Committee. They were indeed, and they were dealt with in some of the Committee’s most heated sittings. He has again

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shown a rather dismissive manner today, although Labour Members gave him a very clear expression of what they think of the Government’s attitude in the Bill to domestic violence. Perhaps he needs to get out more to see what is happening in the real world.

At 1 o’clock today, for example, the Minister could have attended the launch in Committee Room 8 of “Legal Aid is a Lifeline”, in which women speak out on the legal aid reforms. This report on domestic violence was produced jointly by the National Federation of Women’s Institutes and Justice for All. He could have heard the stark, moving testimony of women such as Jenny Broomfield and Sam Taylor, who were—let us make no bones about it—the victims of attempted murder by violent partners who, in at least one case, continued to stalk and pursue them for many years. They find quite abhorrent the Government’s attempt to restrict the criteria to 12 months, which amendment 74 seeks to change, and to restrict the terms of domestic violence. Those women relied on legal aid, in its current form, to get residence for their children, to find a safe place to live and to obtain a separation from their violent partners. They believe that, without it, their plight today would be much worse than it is.

Earlier this afternoon, the Housing Minister launched a very good report by St Mungo’s entitled “Battered, broken, bereft”, one of the leading findings of which was that 35% of women who have slept rough left home to escape domestic violence. It shows double standards and hypocrisy for the Government to cut provisions to tackle domestic violence on the same day in the Commons Chamber. I urge the Minister to listen to voices such as that of the Mayor of London, whose briefing for this debate states:

“The Mayor would like assurances that women who have experienced domestic violence will not be barred from legal aid due to their having a lack of evidence.”

I would also like the Minister to listen to organisations such as Gingerbread, which states:

“Many individuals experiencing violence do not report that violence to the police or seek an injunction via the family courts. This is for a variety of reasons, including lack of faith in the justice system and fear that instigating proceedings would escalate violence. The evidential criteria in the Bill do not reflect the pathways that victims of domestic violence take to find help and support. The eligibility criteria must be broadened to include other forms of evidence such as evidence from a specialist domestic violence support organisation, health or social services.”

Those are the voices that the Minister should be listening to, as well as those that he hears in the Chamber today. So far, he has not done so.

Joan Ruddock: Is my hon. Friend aware that many victims of domestic violence have a great sense of shame, and feel that they cannot reveal through a legal procedure and third parties what is happening to them? None the less, they want to take legal action to get out of the relationship, but they might be so demoralised, afraid and intimidated that they cannot do so without proper assistance.

Mr Slaughter: My right hon. Friend is right. Only 40% of women who suffer domestic violence report it at all, and many go for years without reporting it. They certainly do not have the wherewithal to report it when they are imprisoned not only by violent relationships but by economic circumstances and by having to care

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for their children. That is what I meant when I said that the Minister does not live in the same world as those victims.

Lyn Brown (West Ham) (Lab): I have here a report from a local newspaper. Kay Atwal, a reporter on the Newham Recorder, describes the lives of women she has met, saying:

“Your mail is opened by your in-laws, you can’t call your family or friends and you are not allowed out of the house. Your days are an endless round of cooking, cleaning and clearing up punctuated by threats and criticisms. And hanging over you is the constant fear that you could be deported from Britain if your husband divorces you.”

Does my hon. Friend agree that women such as those could well be affected by the changes that the Government are making today?

Mr Slaughter: We all have similar cases in our constituencies, and I am sure that the Minister must have, too. Those are the people to whom he should be listening.

Kate Green: Does my hon. Friend agree that women who are particularly fearful will not go to formal sources of support such as the police, and that, when they do pluck up the courage to go for advice, they are much more likely to go to a women’s agency or a domestic violence specialist? Does he agree that it is regrettable that the Minister is not prepared to take evidence from such bodies?

6 pm

Mr Slaughter: I will come to that later in my speech, but it was exactly the point that I tried unsuccessfully, as so often, to raise with the Minister in my intervention. In the amendments, we accept the evidential basis, but we are seeking to broaden it to include exactly the sort of organisations that my hon. Friend mentioned. Last time I checked, at least 21 right hon. and hon. Friends supported amendment 74, some of whom wish to speak in the debate, and we have other important debates this evening, so I will try to keep my comments relatively brief.

According to the Home Secretary’s November 2010 publication, “Call to end violence against women and girls”, 1 million women a year experience domestic abuse in Britain. When those women make the decision to leave their abusive partners, often quite suddenly, they need care and expert legal help to escape safely and, if they have children, to ensure their safety too. For more than 60 years, family legal aid has provided that expert legal assistance, helping millions of people, mainly women, to escape violent, abusive and sometimes life-threatening relationships.

In November last year, the Government announced consultation on their plans to reform legal aid. As the Minister said, they plan to take family law out of the scope of legal aid, except when domestic abuse has occurred, but reason that making domestic violence the “gateway” to legal aid will also create an incentive for false claims of domestic violence. So they proposed a limited range of objective proof of domestic violence that would need to be presented before legal aid was granted.

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Five thousands groups and individuals responded to the Government’s consultation, and almost all were opposed. As a result, on Second Reading, the Secretary of State announced a partial U-turn, adding to his list of evidential criteria. In the revised list, legal aid will be granted when a victim has obtained a civil injunction or criminal conviction against her abuser. We welcome that additional criterion, but fear that it is insufficient. Research has shown that, whereas more than half of women have suffered some form of domestic abuse during their lifetime, only a minority ever apply for injunctive release or report the abuse to the police. Women who, for whatever reason, do not want to go through legal proceedings, whether because of fear or simply because they are unwilling to relive the abuse again and again during the judicial process, will be disfranchised by the Government’s plans.

Legal aid will be granted when a victim has been referred to a multi-agency risk assessment conference—a MARAC—as the Minister confirmed today, or domestic violence must have been established as fact in the family courts. MARACs are a great success, but they are typically used for very serious cases. The final criteria that the Government allow are especially perverse, given that legal aid will not be available to obtain a finding of fact in the family courts. The Minister may say that that is not the case, but that is what the Bill seems to say. As such, the Government’s plans to remove family legal aid, except when a narrow and onerous range of objective proof is present, will place thousands of vulnerable women at considerable risk. That is why women’s groups, practitioners and the Opposition continue to harbour deep concern.

Labour’s amendment seeks to widen the evidential criteria of domestic violence to ensure that as many victims as possible receive help, while retaining the Government’s decision to limit private family legal aid to victims of domestic abuse. In doing so, we have tried to come to a joined-up, comprehensive view of the evidential criteria for domestic abuse that already exist in various Departments. The Government’s statement of intent, “Call to end violence against women and girls”, recognises that violence against women requires a focused and robust cross-government approach, underpinned by a single agreed definition. The Opposition entirely agree, as do the courts.

The recent Supreme Court case, Yemshaw v. London Borough of Hounslow, reinforced the courts’ view that there is but one definition of domestic abuse, and the Association of Chief Police Officers has promulgated that definition. The evidential criteria for domestic abuse are not currently set out in the Bill, but they are set out in the response to consultation. The Government plan to promulgate the evidential criteria by order, which is why I fear that the amendment of the hon. Member for Brighton, Pavilion (Caroline Lucas) is insufficient by itself. We entirely support her amendment, but mine would go further in placing the evidential criteria into primary legislation.

The criteria in my amendment are an amalgamation of the objective criteria for ascertaining whether domestic violence has occurred from the Government’s response to consultation and the UK Border Agency’s criteria used in immigration cases. The amendment would do nothing more than unify best practice across government by ensuring that we have one singular evidential definition

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of domestic violence, much as the hon. Lady’s amendment would ensure that we have one singular descriptive definition of domestic violence.

The sort of evidence that my amendment would allow is as follows:

“a relevant court conviction or police caution…a relevant court order (including without notice, ex parte, interim or final orders) including a non-molestation order, occupation order, forced marriage protection order or other protective injunction…evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic violence…evidence that a victim has been referred to a Multi-Agency Risk Assessment Conference (as a high-risk victim of domestic violence) and a plan has been put in place to protect that victim from violence by the other party…a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim”.

I suspect that, so far, the Government are broadly with us, but what I sought from the Minister and did not obtain, is the reason the following evidential criteria are inappropriate:

“a medical report from a doctor at a UK hospital confirming that the applicant has injuries consistent with being a victim of domestic violence, such injuries not being limited to physical injuries…a letter from a General Medical Council registered general practitioner confirming that he or she has examined the applicant and is satisfied that the applicant has injuries consistent with those of a victim of domestic violence…an undertaking”—

the hon. Member for South Swindon (Mr Buckland) is not in his place, but he raised this point—

“given to a court that the perpetrator of the abuse will not approach the applicant who is the victim of the abuse”.

I hope that the Minister has read the Law Society’s comments—he may be familiar with practice in the family courts—that many more matters are dealt with by way of undertaking than by way of trial process. Excluding undertakings from his criteria makes it not only logistically more difficult, but almost certain that the trial process, with all the inherent difficulties of inflaming the situation, will be the norm rather than the exception.

Mrs Grant: On a point of clarification concerning the undertaking, which my hon. Friend the Member for South Swindon (Mr Buckland) raised, an undertaking is a legally binding document. It is signed by the parties and usually sealed by the court. It is a solemn promise that is given to the judge. If it is breached, the person who breaches the order can commit on it, so it is specific and clear, and eminently acceptable in my opinion to be part of the criteria. Having been a domestic violence and family lawyer for the past 23 years, I am worried that the exclusion of undertakings from the criteria will create a perverse incentive not to dispose of a matter at the earliest opportunity, but to continue with the litigation from fear that further problems may come out of the woodwork, which, as family lawyers, we believe are coming in the future. I ask my hon. Friend the Minister to reconsider that.

Mr Slaughter: If he wishes, I will give the Minister the opportunity to intervene on me, and to reply to the hon. Lady, or he may wish to deal with the matter subsequently. I have nothing like her experience, but I have had the experience many hundreds of times of explaining undertakings and their seriousness to clients. She is absolutely right. In law, there are clear differences, but in practice the effect of an undertaking is the same in

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relation to perpetrators as the outcome of a trial in terms of the penalties available against them. Excluding undertakings is a huge and glaring omission from the Bill.

The other criteria are

“a letter from a social services department confirming its involvement in connection with domestic violence…a letter of support or a report from a domestic violence support organisation…or…other well-founded documentary evidence of abuse (such as from a counsellor, midwife, school or witnesses.”

Ben Gummer (Ipswich) (Con): On paragraph (j) of the hon. Gentleman’s amendment, I can see where he is heading, but would that require a state registry of domestic violence organisations to exist so that they could be validated in order to put in a claim legitimately?

Mr Slaughter: I think the hon. Gentleman is trying to be helpful, but he is over-complicating matters. He is also missing the central point, which is that our issue is not, as the Mayor of London’s appears to be, with self-referral or with the Minister’s point about false claims, but with the scope for evidential support. We believe that organisations, whether they be medical or domestic violence organisations should be sufficient to be regarded as evidence, just as they often are in trial processes.

Ben Gummer: I am genuinely trying to helpful, though I know that the hon. Gentleman might find that difficult to believe. All his other examples—general practitioners, hospital doctors, undertakings from a court, social services departments—are instruments of the state, as it were. I would be happy for many organisations in my constituency that support women in a domestic violence situation to give evidence to a court, but that does not mean that all organisations that claim to speak for women should be able to do so.

Mr Slaughter: The hon. Gentleman is being a little pernickety. It is a practical reality that in many cases voluntary organisations, which have vast experience of supporting women, will be providing that support, not only in an emotional and a practical sense but in an evidential sense.

Sandra Osborne: Does my hon. Friend agree that many women go backwards and forwards to the likes of Women’s Aid time and again and do not disclose it to anyone else—including, often, their GP—and that had it not been for such organisations, the problem would not have been addressed as it has, although it has been totally undermined, as an assessment of a societal problem, by what the Government are doing today?

Mr Slaughter: I am grateful to my hon. Friend for sharing her experience.

Contrary to the Government’s guidance, the amendment would not limit the time since which such evidence was generated to a year. I am not seeking to derail the Government’s intent but merely to ensure that they live up to their own aspirations—to utilise a single agreed definition of domestic violence and to ensure that those who suffer domestic violence get access to requisite public services. This ought to be uncontroversial, yet the Government have so far resisted our submissions on all points. This is the last opportunity for this House to

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make a difference on the Bill. This is critical if we are to protect women—it is mainly women—who are victims of domestic violence.

It is not just me who is saying this. The Women’s Institute is demanding changes, as are Rights for Women, End Violence Against Women, and some Government Members. In Committee, Members were whipped—some unwillingly, I am told—to vote against these amendments. I am sorry that the hon. Member for Broxtowe (Anna Soubry) is not in her place, because after the Committee she told the press:

“We’re not happy about the changes in legal aid…we’re fearful they will affect women who are separating from husbands. We’ve identified that as a problem.”

She is right about that. I ask her and the hon. Member for South Swindon, and other Members who have genuine concerns about this—I am sure that that goes for Liberal Democrat Members as well—to join me and my right hon. and hon. Friends in the Lobby later this evening, when will we have a chance to vote for a practical, joined-up, consensus-based solution on domestic violence

6.15 pm

Tom Brake (Carshalton and Wallington) (LD): In Committee, our debates on domestic violence were among the most heated, because of the seriousness of that offence. In my own borough, 40% of violent offences relate to domestic violence. I know that the Minister is aware of the difficulties that arise for women who are experiencing domestic violence—admitting that it is taking place in the first place, giving evidence, and so on—and I am sure that he appreciates the challenges that they face. I know that he will have looked carefully at amendment 74, tabled by the Opposition, which seeks to widen the definition of domestic violence.

I should like briefly to speak to amendment 23, to which I have added my name. My hon. Friend the Member for Maidstone and The Weald (Mrs Grant), highlighted her concerns about the discrepancies, or perhaps lack of consistency, in the definitions of “domestic violence” that are being used. Despite the Minister’s response, further clarification is needed on why different definitions are appropriate in different places. He will have heard Members on both sides of the House express concerns about undertakings, in particular. That point has come across very strongly today, as it did in Committee.

I do not want to detain the House further, because other Members want to speak and there are a large number of amendments relating to domestic violence. I hope that some progress will still be made on this issue, if not through an immediate response from the Minister, then perhaps when the Bill reaches the Lords.

Helen Goodman: As the Minister said, we debated this issue in general at some length in Committee. I shall speak in support of amendments 23, 74 and 96 to 98.

A central concern is the narrow and restrictive definition of “domestic violence” that the Minister is putting into the Bill. Once again, we have heard remarks from him that demonstrate his lack of understanding and his lack of sympathy for people in this situation. He said in Committee, and he said again today, that his criteria

“all avoid self-reporting and involve a significant level of state intervention.”

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That is indeed the case. The problem is that in taking that approach, he is treating women as if they are not adults capable of self-reporting. That is why many Labour Members feel that he is taking us back 30 years. He said:

“We are concerned that to include admission to a refuge in the criteria would be to rely on self-reporting”.

He said that he is

“not persuaded that the medical professionals would be best placed to assess whether domestic violence has occurred”

even though

“they may witness injuries”.

He said that he does not believe that, in themselves, allegations of domestic violence are objective. He said, as he said again today, that the tests he wishes to use

“are designed…to minimise the risk of false allegations.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 6 September 2011; c. 359-64.]

That is a problem. If his objective is to minimise the risk of false allegations, then his objective is not to maximise the support that women need.

Following the extremely concerning debate that we had in Committee, on 8 September I wrote to the Under-Secretary of State for the Home Department, the hon. Member for Hornsey and Wood Green (Lynne Featherstone), who is responsible for issues relating to women and equalities. On 25 October, I finally received a reply, in which she says:

“You make the point that the definition of domestic violence used in the Bill is much narrower than the ACPO definition. My understanding is that the definition of “abuse” in the Bill is a broad one…We have been assured by the Ministry of Justice that the definition used would not exclude, for the purposes of legal aid and private family law cases, any of the types of abuse covered by the definition used by ACPO.”

This letter is quite extraordinary. She goes on to say:

“The Government is clear that objective evidence will be needed to ensure that legal aid in private family cases is focused on those who may be intimidated and unable to assert their rights as a result of domestic violence or the risk of harm by the other party to the proceedings”.

Her reliance on the assurances from the Ministry of Justice that its definition is the same as that used by ACPO leads me to ask two questions. First, what is the point of a Minister for Equalities who does not check with the rest of the world what is going on? Secondly, did the Minister tell her that his definition was the same as the ACPO one, when everybody knows that that is not the case?

The Minister for Equalities could easily have listened to the Bar Council—not, one would think, a wild group of left-wingers who are determined to promote a feminist picture of the world. One would think that she might have listened to it. It wrote to many Members this week.

Mr Djanogly: It is the case that the ACPO definition and the definition in the Bill are broadly similar.

Helen Goodman: Broadly, yes, but not precisely—that is the problem. About an hour and a half ago, the Minister accused hon. Members of dancing on pinheads. He is now the one who is doing that. We have demonstrated that under his definition, some 20,000 victims of domestic

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violence will not get legal aid each year who would get it currently. That is the problem.

I remind the Minister of what the Bar Council is saying:

“The narrow definition of domestic abuse, which is more restrictive than that used by the Home Office and the Association of Chief Police Officers and will limit legal aid to victims of certain ‘types’ of abuse”.

It states that there are:

“Excessively narrow referral mechanisms for victims of domestic abuse, who will not be eligible for civil legal aid if, for example, they have been admitted to a refuge but have chosen not to bring proceedings against their abusive partner”.

Debbie Abrahams (Oldham East and Saddleworth) (Lab): Does my hon. Friend agree that the Government’s impact assessment shows how narrow the definition is? Is this not yet another attack on women by this Government?

Helen Goodman: It is indeed. We heard that from the hon. Member for Maidstone and The Weald (Mrs Grant), who made some excellent interventions. We see once again that the Ministry of Justice is at a severe disadvantage because it has no women in its ministerial team. My hon. Friend is absolutely right.

The Bar Council is also concerned, as are many hon. Members, about the impact on children, referring to:

“The decision to exclude most adults in private family law cases from the scope of legal aid, even in cases of significant difficulty involving legally represented children, which may result in children alleging abuse being cross-examined by the alleged abuser.”

The problem is that the Minister is so determined to use a definition that he believes is watertight that he is ignoring the reality. The reality is that most women experience 20 episodes of violence before they report it to the police. By insisting that only a report to the police followed by various court actions is required for legal aid, the Minister is condemning more women to suffer domestic violence in silence.

Simon Hughes: I will speak briefly on amendment 145, which the Minister has addressed and on which I asked him a quick question. If I may, I will amplify that point.

My point is not about the important matter of domestic violence, which my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) has spoken about and on which there is continuing concern across the House, but about the families of those who are rightfully admitted to this country as refugees or beneficiaries of humanitarian protection. Many Members, including me and my neighbour the right hon. Member for Lewisham, Deptford (Joan Ruddock), encounter such cases routinely in their constituency surgeries. This is not an irregular occurrence in our work.

Somebody who is granted the ability to stay in this country as a refugee because of race, religion, nationality, membership of a social group or their political opinion, or somebody who is given humanitarian protection because they are at risk for some other reason, might have applied for their family members to come with them as dependants or their family members might have made separate, parallel applications. In such cases, their family members can be dealt with in the same way.

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However, we all know that when people come here as refugees, they do not often do so in an orderly way as a family. It might be that one family member comes here from one country and other family members from another. For example, when Sierra Leone had its civil war, people fled from it with some ending up in Gambia and others elsewhere. It might be that one family member comes at one time while another is left in a refugee camp. It might be that other family members had disappeared when the application was made. It might be impossible for the mother, the wife or the daughter to make an application at the same time. It is those cases that I am concerned about.

I accept that often there are straightforward applications that do not have complications, but sometimes there are significant complications and we need to ensure that people are not disadvantaged because they cannot match the state in argument.


Joan Ruddock: The right hon. Gentleman is indeed my neighbour and we share such cases. Perhaps I can help him by giving an example. I am dealing with a woman at the moment who has advanced cancer. She has children and has the right to be here, and she is trying to get her husband to join her. She tried to make the application alone, but got it all wrong and the state said no. She does not need me giving her a bit of advice, but proper legal assistance to make her case speedily and accurately. She would not get that under the future arrangements.

Simon Hughes: The right hon. Lady gives a good example. It is often people with difficult personal circumstances who have such problems. They might be here and unwell or dying. They might be literally on their own in this country. All the evidence shows that if we want people who come here as refugees or for humanitarian protection to integrate, the best way to achieve that is for their family to be here to give them support; often that is intergenerational support.

Mrs Madeleine Moon (Bridgend) (Lab): Will the right hon. Gentleman give way?

Simon Hughes: I am trying to be quick, but I will.

Mrs Moon: Does the right hon. Gentleman agree that an increasing difficulty for the people he is describing is that they have to make a telephone call to see whether they are eligible for legal aid? We are talking about people who might have poor command of the English language. The people they talk to are not trained lawyers. They will no doubt get their stories, their dates and everything mixed up. That will, yet again, make it impossible for people to get the legal help and advice that they need, even when their case is totally justified.

Simon Hughes: I understand the hon. Lady’s point. My right hon. Friend the Member for Carshalton and Wallington and I, along with others, have tabled an amendment on telephone access that we will come to later. This is one of the matters on which I have had a significant number of representations from law centres and people who deal with such work. I understand her point and agree with it.

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It is often not possible for family members to claim asylum because they are not in the UK. They therefore do not get the benefit of legal aid.

The UK Border Agency often requires evidence of the relationship. That is not surprising and it is perfectly proper. People are asked to undergo DNA tests. Spouses are asked to produce evidence of their marriage. That might be straightforward, but it might not be, either in law or in practice.

Yasmin Qureshi (Bolton South East) (Lab): I agree with the right hon. Gentleman. At the Conservative party conference, the Home Secretary gave a completely misleading example when she said that in one case somebody was found to have family rights because of a cat. Does he agree that such things do not help in these debates?

6.30 pm

Simon Hughes: It might or might not surprise the hon. Lady to hear that I was not at the Conservative party conference. I can mischievously go one step further and say that I was on an official visit to India at the time, so if she will forgive me, I cannot comment on the conference because I did not even see it. I understand where she is coming from. Such sensitive issues are often capable of being misrepresented by our constituents and by public opinion at the tabloid end of the press. However, if my family had undergone such trauma, I would want the support of the country in which I had sought refuge.

I shall briefly add a last few facts, and I pay tribute to the Immigration Law Practitioners Association, which provides a good support system for all who deal with this sort of work. First, 61% to 66% of refusals are overturned on appeal. The evidence, therefore, is that people win such cases not occasionally, but regularly, even if they need to come through the system on appeal.

Secondly, the situations of the applicants often seriously compound their difficulties in making the application or pursuing an appeal. Family members could be in hiding, or they could be in a country where they have no lawful status. They too might have faced or fled persecution. The remnants of the family might be isolated, in hiding or shunned. As the hon. Member for Bridgend (Mrs Moon) said, they could be in dire financial straits. For such people, making phone calls, let alone international ones, would be impossible. The chances of a person in Shatila refugee camp, for example, having the cash or ability to make international phone calls to establish their rights to join their family in the UK are minimal. Camps are not geared to dealing with individual international applications for family reunion—they are just not an appropriate context for that.

Evidential demands could be substantial and protracted. People might need witness statements from other relatives, who could be in this country or another one, which might not be the one where the applicant is. Family members often have to be traced and communication is sometimes slow. The right hon. Member for Lewisham, Deptford made the point that submitting the application correctly so that it gets through the system is not easy.

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However good the immigration judge is, a litigant in person in those circumstances, who might have poor English and who might be only a recent arrival, and who might be worried and traumatised by their history, might not be in a good position to make an effective case in front of the court. In any event, the judge cannot, by definition, see the other family member, because they will not be here. The judge cannot hear evidence from them or others from whom he may need to hear.

I hope the Minister understands. Those are real cases, and I hope I can appeal to the sympathy and understanding of colleagues in the Department. If somebody can come here as a refugee or on humanitarian grounds, the logic must be that their immediate family should be able to come with them. That is the expectation of the international agreements that we have signed, which the Government should understand.

Joan Ruddock: The right hon. Gentleman makes an utterly compelling case—I agree with it totally and I wish to vote for the amendment, so I trust that he will press it to a Division.

Simon Hughes: In one sense, the right hon. Lady makes an absolutely reasonable proposition. I am determined that we will win this argument, but I will wait to see what the Minister—[ Interruption . ]

Karl Turner (Kingston upon Hull East) (Lab): Pathetic!

Simon Hughes: No, it is not pathetic at all. Let me say to the right hon. Member for Lewisham, Deptford that there are four groups of amendments and that we have until 10 o’clock. The Opposition Front Benchers want to press their amendments to a Division, as do other colleagues, including me and my right hon. and hon. Friends. I hope the Minister will be helpful—[ Interruption. ] No, he originally indicated following my intervention that he was willing to look at the case again. I am determined to win that case. Whether we can win it today is not entirely in my hands. I hope that that is helpful, and I look forward to the right hon. Lady’s continued assistance in ensuring that we win the argument.

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): With respect to the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), that speech was absolutely breathtaking. I have a high regard for him, but in this instance, his colleagues in Committee did not issue a single word about this and many other important humanitarian issues. I do not know which audience he is addressing, but no work whatever was done by his colleagues in Committee—I was there.

Simon Hughes: I know the right hon. Gentleman was there. As I understand it, this issue was not debated in Committee and no amendment on it was tabled by either Government or Opposition. That is why I am raising it now.

Mr Llwyd: Later on, I shall speak to my amendment that partially deals with this matter, and the right hon. Gentleman might wish to join us in the Lobby if I press it to a Division.

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I want to be as quick as I can, because other hon. Members wish to speak and we have a lot of work to get through. If the hon. Member for Hammersmith (Mr Slaughter) is tempted to press amendment 74 to a Division, I will encourage my colleagues to follow me into the Lobby.

I should like to speak briefly to amendments 91 to 102, 83 and 103, which are in my name. I listened carefully to the Minister when he referred to amendment 91. He said that the words “or other intimate” are not necessary, which I accept. They probably are otiose, and therefore that point has been dealt with. I dare say that much of what the Justice Secretary will say tomorrow on self-defence will also be otiose, but that is another debate for another day.

Amendment 92 would broaden the definition by removing the words “physical or mental abuse” and replacing them with

“any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.

The Minister knows that many people wrote to right hon. and hon. Members and we heard lots of evidence on a subject that has exercised many in the Chamber this evening just as it exercised those in Committee. I have begun to question whether pre-legislative scrutiny is worth anything, because if we get hundreds of pieces of evidence from informed bodies, people at the sharp end and practitioners, and then decide to do little or nothing about them, the process is brought into disrepute.

Amendment 93 would insert the words

“or where an allegation is made that B has been abused by A or is at risk of being abused by A”

to line 4 of page 103. Paragraphs 10 and 11 to schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse. However, they do not provide for aid for the adult against whom the allegation is made. The amendment would bring the alleged perpetrator back within scope. That might sound strange, but I shall explain the thinking behind it in a moment.

Amendment 96 would insert the words:

“Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1)”,

and amendment 97 would add the words:

“Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances)”.

In responding to points made earlier, the Minister said that the section 37 investigation could well amount to nothing. However, such investigations are not taken lightly. They are always instigated on basic evidence, and caring for that child is not a routine matter, but an extremely important one.

Amendment 98 would add

“Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10”

to line 39. That would bring within scope both proceedings leading to an order under section 37 of the Children Act 1989 and all subsequent steps in family proceedings

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after a section 37 order has been made. It would also ensure that the person against whom allegations of abuse are made is brought within scope.

Amendments 100 to 102 are consequential amendments. Their purpose would be to amend paragraph 13, which provides legal aid to child parties in cases that come under the relevant parts of schedule 1, but not to adult parties. That provision will result in unrepresented adults being forced to cross-examine expert witnesses and, in many cases, even the child concerned. The amendments would therefore bring adult parties in such cases within the scope of legal aid provision.

Amendment 103 relates to the director of the Legal Services Commission. We debated in Committee the role of the commission, the independence, or not, of the director in arriving at decisions and the question of whether those decisions will simply be cost-driven. The amendment is designed to deal with those issues. It states that

“the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse;

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purposes of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse,