and in this subsection ‘domestic abuse’ means abuse of the kind to which paragraph 10(1) of Schedule 1 relates”.
The intention is self-evident.
I declare an interest at this late stage in my remarks. I practised family and criminal law for 15 or 16 years as a solicitor and for an equal number of years at the Bar, so I have some understanding of how the family courts work and would therefore gently admonish the Minister: the word “custody” went out of favour about 12 years ago—but that is by the bye. My background in this area of law leads me to believe that these changes might well have a devastating effect on families and, even more importantly, children. Both, of course, are closely interrelated: if it is disastrous for the family, it is obviously additionally disastrous for the young child as well. What is more, I believe that the Government’s decision to press ahead with a weakened definition of “domestic abuse” will result in many women—for it will be overwhelmingly women—entering into court proceedings alone and without legal aid funding.
Mrs Moon: Does the right hon. Gentleman agree that the problem is that we are coming from different directions? For Opposition Members, the priority is the protection of women and children who have been abused, who are facing abuse and who live in fear of their lives. For Government Members, the priority is saving money.
Mr Llwyd:
I have to agree with the hon. Lady, and I would pray in aid another point about the more general civil cases where litigants in person will be 10 times more prevalent in courts than they were previously. That is simply to save money, but actually it will not save money. Instead, it will increase pressure on courts and court time and will be a complete disaster—a dog’s breakfast. It is worth remembering that 40% of magistrates and county courts have been closed and that the Ministry
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of Justice was looking for a 40% decrease in its first budget—that is rather convenient. However, I have no doubt that she is right, and it grieves me that money comes before the welfare of young children. We are talking about knife crime, juveniles going on the wrong side of the law and so on, and the Bill will do nothing to address that. Instead, I fear that it will make matters even worse, although I hope that I am wrong.
Catherine McKinnell (Newcastle upon Tyne North) (Lab): Will the right hon. Gentleman give way?
Mr Llwyd: I will give way, but briefly, because other Members wish to speak.
Catherine McKinnell: The right hon. Gentleman is making a powerful case about the impact that the Bill will have not just on women suffering domestic violence, but on children in that situation. Does he agree that there is a significant risk not just that it will not save money for the MOJ, but that it will result in increasing costs across Departments, for social services as a whole and for the future of our society, leaving children in those difficult situations?
Mr Llwyd: The hon. Lady is absolutely right. When we take into account housing costs, benefits and all kinds of things, we see that it will be a huge amount of money at the end of the day.
6.45 pm
Amendments 91 and 92 would widen the definition of “domestic abuse”, bringing it in line with the definition adopted by the Association of Chief Police Officers. There remain grave concerns about the Government’s chosen definition. I know that many other hon. Members feel strongly about this, and I believe, as they do, that the definition in the Bill should accord precisely with ACPO’s definition, which is
“any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality. (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.)”
My amendments would bring the Bill’s definition in line with that definition. In Committee, the Minister claimed repeatedly that if we widened the definition of domestic violence, we would have to rely on self-reporting. I do not quite understand that correlation, but never mind. That point was made ad nauseum. I fear that the Government do not realise the gravity of the situation. Considering the criminal under-reporting of domestic abuse, it is astonishing to think that the Government are giving so much weight to allegations of misreporting. Women will, on average, experience 35 incidents of abuse before reporting it to the police, and we should not treat their witness statements lightly.
What is more, the Minister claimed that the ACPO definition was not satisfactory, because it did not sufficiently establish objective evidence of abuse. He said that an allegation in itself or a police investigation would not constitute evidence for the purposes of legal aid. Once again, I emphasise to him and his colleagues that domestic
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violence can be inflicted in more subtle ways that do not leave visible marks and bruises: abuse can be financial, emotional and psychological, and can involve power games drawn out over long periods of months. Vulnerable individuals put their trust in our justice system and the state to support them when things go wrong. We must not lose sight of that responsibility, and we must not abandon victims of domestic abuse to undergo legal proceedings without recourse to legal aid and assistance.
The circumstances in which a person suffering domestic abuse must be treated as qualifying for civil legal aid are also excessively narrow and overlook the fact that many victims choose not to report the abuse to police, but seek assistance and medical treatment elsewhere. Amendment 103 would ensure that victims of domestic abuse qualify for legal aid in circumstances outside those narrowly prescribed by the Bill and so ensure that those in need would not go without vital legal aid and assistance.
Amendment 93 seeks to ensure that victims of domestic abuse cannot be cross-examined by their alleged abusers. Paragraphs 10 and 11 of schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse, but not for the adults against whom the allegation is made. The consequences of that will be a significant inequality of arms in such cases. In many instances, I fear, the alleged victim will face awful cross-examination from the adults against whom the violence is alleged.
Yasmin Qureshi: Does the right hon. Gentleman agree that the criminal courts accepted many years ago that in criminal cases defendants could not cross-examine victims on matters such as sexual offences? To take away that right in the civil courts, where people are facing equally harrowing situations, is completely wrong and would be at variance with the criminal courts.
Mr Llwyd: Yes, and I wonder about the quality of the evidence coming out of that flawed process.
I was assisted in drafting amendment 93 by the Bar Council, which has said that the effect of preventing such distressing and costly consequences is worth looking into urgently. Amendments 94 to 102 relate to proceedings involving children’s welfare. As the Bar Council has said:
“It is not understood why, under Schedule 1, the provision of legal aid is limited to proceedings relating to the children, and not the associated financial remedy proceedings. The child’s economic welfare is important in abuse cases; particularly given the higher incidence of abuse in low-income households.”
“would have the effect of bringing within scope…proceedings leading to an order under the Children Act 1989 section 37…and…all subsequent steps in family proceedings once a section 37 order has been made. They would also ensure…that…the person against whom allegations of abuse are made is within scope.”
Amendments 94 and 95 are consequential amendments.
The Minister said in Committee that cases involving financial provision are not a priority for legal aid. I firmly believe that all private family cases should be retained within the scope of legal aid. It is difficult to overestimate the damaging effects on children caught up in untidy, bitter and lengthy disputes. Protecting the interests of children is at the heart of amendments 99 to 102. As the Bar Council has said:
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“Paragraph 13 provides for the provision of legal aid for the child parties in cases which come under subsection (1)(a)-(e), but not for the adult parties,”
“result in unrepresented adults being forced to cross-examine expert witnesses and, in many instances, the child concerned.”
Amendments 99 to 102 would have the effect of
“bringing within scope the provision of legal aid for adult parties in such cases.”
I want to talk briefly about amendment 83, my final amendment, which deals with judicial review. I thank the Immigration Law Practitioners Association for its help in briefing me on this amendment. We know that immigration-specific exclusions have been made. In their Green Paper, the Government set out a robust defence of judicial review and the need for retaining legal aid in such cases, saying:
“In our view, proceedings where the litigant is seeking to hold the state to account by judicial review are important, because these cases are the means by which individual citizens can seek to check the exercise of executive power by appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring that state power is exercised responsibly.”
None the less, the Government have compromised their position in immigration cases. My amendment 83 seeks to rectify that anomaly. In explaining why immigration cases are to be exempted from legal aid for judicial review claims, the Government say that they have drawn on the response to the Green Paper by the senior judiciary, who raised concerns about unmeritorious judicial reviews, but in so doing the Government have ignored three key aspects of the judiciary’s proposals.
First, the judiciary’s proposals were advanced only on the basis that
“careful further consideration would need to be given”
before the proposals that the Minister is now pushing could be taken up. However, no consultation has been held on those proposals. What is more, the judiciary also advanced their proposals on the basis that, in principle, legal aid should be available for appeals before the first-tier tribunal. However, the Bill removes legal aid in such non-asylum appeals. Finally, the proposals were advanced on the basis that legal aid should not generally be excluded, but instead be available where a positive decision was made in favour of granting legal aid in any individual case—for example, because the judge decided that it had merit. However, the Bill removes legal aid for such immigration cases, regardless of the merit of any individual case. All in all, this is a sorry state of affairs.
The Government seek to justify the new exclusions for judicial review in immigration cases by stating that public funding is not merited in cases that have
“already had…one full oral hearing,”
yet the provisions exclude legal aid even where there has been no oral hearing. The Government have effectively reversed their position that holding the state to account was of especial importance—hence the need to retain legal aid for judicial review. As a consequence, legal aid will not be available to hold the state to account at any stage, because immigration applications and appeals are also being removed from the scope of legal aid—a Catch-22 situation, or perhaps “Kafkaesque” would be a better description.
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To remind ourselves, the changes will affect cases involving non-asylum claimants who face removal from the UK, and therefore from their families, homes and communities. Such claimants include trafficking victims receiving rehabilitative care and treatment; British children and spouses facing permanent separation from their parents or partners; children who have lived in the UK for many years—sometimes all their lives—facing removal to countries that they have never seen and do not know, and where they do not speak the language; adults who have lived in the UK for many years, and sometimes decades, facing removal to countries that they do not know; and victims of torture and other trauma who are no longer at risk of persecution in their home countries, but who are reliant on professional care and treatment.
The position now advanced by the Government is not supported by their stated principles or by the position advanced by the senior judiciary, and would leave a powerful agency of the state—the UK Border Agency—free from effective judicial oversight when exercising powers to remove people from their families, homes and communities, including where doing so will harm their welfare, health or life prospects. For those reasons, sub-paragraphs (5), (6) and (7) of paragraph 17 of schedule 1 have no place in any legislation with any regard for human rights or humanitarian issues.
Caroline Lucas: I rise to speak to my amendments 23 and 113. I shall be brief, because we have much business to get through, but let me say at the outset that I support Labour’s amendment 74. However, I still want to speak to my amendment 23, because I am yet to hear anything from the Government to explain why there is such resistance to ensuring that the definition of “domestic violence” set out in the Bill reflects the working definition currently used across Departments, including the Home Office and the Ministry of Justice, and by the UK Border Agency.
In a debate earlier this month, the Minister for Equalities assured me that the Government had
“not sought to change the accepted definition of domestic violence. We are including all forms of domestic violence, physical and mental, in legal aid criteria.”—[Official Report, 12 October 2011; Vol. 533, c. 136WH.]
That commitment is incredibly important to thousands of women in my constituency who have experienced physical and emotional violence, as well as those who have suffered sexual violence, and to all women across the country who desperately need legal aid to try to protect themselves from domestic violence. However, I fail to understand why, having made that commitment, the Government are using a definition of abuse in the Bill that departs from the current, widely accepted definition. My fear—and that of many campaigners working on the issue, including the women’s institute, Rights of Women and Gingerbread—is that using a different definition will weaken protection for women and result in legal aid being unjustly denied in some domestic violence cases.
In the debate on 12 October, the Minister for Equalities pledged to continue to support the robust cross-departmental approach to tackling violence against women and girls—a position also detailed in the Government’s strategy, published last year. However, surely having the same definition of “domestic violence” in use in all relevant legislation and across all Departments is the
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cornerstone of a joined-up approach. Problems can arise for women if a robust cross-departmental definition is not adopted. For example, in the case of Yemshaw
v
. London borough of Hounslow, the local authority refused to recognise Ms Yemshaw as homeless as a result of domestic violence, because, although she had been subject to emotional, psychological and financial abuse by her husband, she had not experienced physical abuse. Not until the case reached the Supreme Court was Ms Yemshaw recognised to have experienced domestic violence and thus deemed to be eligible for housing assistance. I appreciate that the definition in the Bill addresses mental abuse, but the key point is consistency. Responding effectively to domestic violence relies on clarity, uniformity and consistency. There is a perfectly good definition already in widespread use, so let us include it in the Bill. If not, may we please have a much more rigorous response from the Government about why not?
Let me say a few words about amendment 113, the purpose of which is comprehensively to preserve legal aid in immigration cases for a person subject to domestic violence. It is also designed to highlight the inadequacy of Government amendment 59, which fails to provide legal aid for a specific group of individuals, namely those subjected to domestic abuse whose immigration status is dependent on their partner, where they have not been granted limited leave to remain for a probationary period at the end of which they may apply for indefinite leave to remain.
In July, the Minister undertook to bring forward a Government amendment that would bring immigration cases involving domestic violence within the scope of clause 10. Of course that is welcome, as was the Minister’s undertaking to consider the first part of my amendment 113, which he made when he got up to speak quite some time ago. What I would love to know from him is exactly when and how he is going to consider it. We are now in the last few days of debate on this really important Bill. At this stage, for Ministers to say that they are going to consider provisions in some unspecified way is simply not sufficiently reassuring.
7 pm
Government amendment 59 is worrying because it is restricted to persons who are present in the UK with limited leave as spouses or partners of British citizens or settled persons whose relationships break down during the period because of domestic abuse and who can prove this to the satisfaction of the Secretary of State.
The UK Border Agency has recognised the particular difficulties experienced by people in this position, and the Government helpfully identify four factors relevant to why legal aid should be provided in those cases. They include such things as the risk that victims will stay trapped in abusive relationships for fear of jeopardising their immigration situation; the trauma they might have suffered, which often makes it difficult to cope with making an application; time pressures that apply in immigration proceedings; and difficulties of access to a properly designated immigration adviser. I agree that those are all important issues and protection is needed in those cases, but the point is that those circumstances do not merely apply to those who fall within the domestic
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violence immigration rule. There are several other situations in which a person’s immigration status is dependent on a partner where the person might be a victim of domestic abuse and might therefore be trapped in an abusive relationship because of fears about their immigration status.
Glenda Jackson (Hampstead and Kilburn) (Lab): There is another element in the situation to which the hon. Lady refers. Indeed, I have more than one constituency case where the individual being abused comes, as members of their family have told me, from a culture where such attacks are never reported to the police and these women are expected to suffer in silence. In many instances, these are elderly women.
Caroline Lucas: I thank the hon. Lady for her intervention, which raised a really important point. It underlines the fact that we need from the Government a fuller explanation of exactly how they are going to consider the first half of amendment 113.
Let me finish by saying that the people I have particularly in mind are victims of domestic abuse who are not necessarily probationary partners. They might be a partner of someone with limited leave or of a person exercising European free movement rights. Although they do not fall within the domestic violence immigration rule, they might well face the very same problems as those who do. I look forward to hearing more from the Minister about how he intends to take forward the concerns raised in amendment 113 and that have been mentioned by other Opposition Members tonight. I very much hope that he can offer some serious reassurance for the future.
Kate Green: I speak in support of amendment 74 and endorse many of the comments made by the hon. Member for Brighton, Pavilion (Caroline Lucas) about her amendments. I shall add a couple of points about the definition of domestic violence and abuse and say a little more about the appropriate role of mediation.
We are all at a loss to understand exactly what distinction the Minister is drawing between the definition given by the Association of Chief Police Officers and the definition in the Bill. He variously says that there are differences and that different standards are required in cases where an investigation is taking place rather than action in court. Then he says that there is not much difference and he described the definitions earlier as broadly similar. Frankly, I think this definition is simply all over the place. That matters significantly, because it will put extra uncertainty and pressure on victims of domestic violence and abuse at precisely the time when they do not need to be uncertain. They have become brave enough to speak up and pursue their case, but it is not clear whether they will be covered by the scope of legal aid.
I am particularly concerned that the Minister seems to be putting in an extra hurdle for women who are victims of domestic violence but who are nevertheless able to make a case that they should be in receipt of legal aid. They can make an application saying that theirs is an exceptional case. They will presumably have to go to the new decision-making authority set up in the Bill, but we have no understanding of how that will be done, how much delay it might cause or what sort of
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evidence will be required to get access to exceptional funding to bring a case. All that is left unclear and simply adds further pressure and difficulty for victims of domestic abuse.
Amendment 74 is designed to be more precise about some of the evidential factors that should be considered. I would like to respond to the important point raised by the hon. Member for Ipswich (Ben Gummer) when he asked my hon. Friend the Member for Hammersmith (Mr Slaughter) whether it would be helpful to have some sort of national register of agencies, from which such evidence could be received. I am sure that that will not be of any great attraction to the Minister, but the UK Border Agency is already well placed to accept evidence from such voluntary sector and third sector agencies. That provides a model that could apply here.
Mr Slaughter: My hon. Friend is absolutely right and made the point better than I did. Of course, the UK Border Agency accepts evidence from GPs, which the Minister appeared to pooh-pooh in his earlier comments.
Kate Green: Indeed, the Minister was more concerned to avoid the number of false allegations that he seems to regard as the major difficulty with domestic abuse cases. Opposition Members are far more concerned about the protection of vulnerable victims and believe that that should be the first and overarching priority. [Hon. Members: “Hear, hear.”]
Finally, I want to say a little more than I was able to raise in interventions about the use of mediation. Of course we all want to see mediation used wherever it is appropriate and possible for separating couples to reach agreement through that route. We also know, however, that one thing that is particularly damaging to children is conflict. If there is a high degree of conflict, it is unlikely, even if domestic violence or abuse is absent, that mediation is going to be effective or can possibly work.
We are therefore again a bit puzzled about the Minister’s intentions on the use of mediation. I think he said earlier that the requirement was not to undertake mediation but to go through a process whereby it would be determined whether mediation was suitable for a separating couple. Then he said that there would be no compulsion on people to accept mediation. Well, that is certainly true, but if there is no other form of help or assistance available, it is very much a Hobson’s choice.
Can the Minister see any scope for extending access to legal aid to those small number of cases where there is a high degree of conflict and perhaps no abuse or violence as such, but where the conflict would certainly be damaging to the well-being of children? What assessment has he made of that? What does he consider might be the extent of such cases? Has he any idea or any calculation? What consideration has he given to the impact on children and will he look at ways to offer particular protection to children from the very harmful effects of conflict, which we all know to be the case?
Sheila Gilmore: I have an interest to declare, as I have worked as a family lawyer and predominantly in legal aid over many years. I have been involved in many cases, some of which involved domestic violence and some not. The Minister seems obsessed with the notion that people might make false claims to get legal aid.
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Yasmin Qureshi: Does my hon. Friend agree that there is no statistical evidence to show that reports of false allegations of domestic violence are any higher than they are for any other crime where people are potentially making false allegations?
Sheila Gilmore: As far as I am aware, there is no such evidence. What the Minister has in mind is perhaps just an untoward result of his own legislation. I am not doubting that there will be many false accusations to be made here, but by ruling out legal aid for family cases and making the only route to it the ability to jump through the domestic violence hurdles, perhaps a situation is being set up, which might lead to that happening. It is an unnecessary consequence of a decision that has already been made to take legal aid out of family cases.
One might sometimes get the impression that legal aid is something for which lots of people qualify so that it has become a big problem in this country, but it is already the case that many people do not qualify for legal aid on financial grounds—even to get protection from domestic violence or to get the occupancy of their own home and the exclusion of a violent partner from it. Many people who already suffer the additional difficulties caused by relatively low incomes and small assets do not qualify, and even in cases of domestic violence the availability of assistance is limited.
The Bill could have another untoward consequence. Those advising people who have experienced domestic violence are likely to feel obliged to encourage them to take legal proceedings to establish the fact of the violence, regardless of whether such action is essential to their protection at that time. That will enable those people to jump through the hoop and qualify for legal aid for wider purposes, involving, for instance, what happens to the matrimonial home, what happens to the children and what happens in relation to other financial matters—issues that are extremely important to many women. Thus the potential for more litigation will be created. When applicants who would otherwise have qualified for legal aid do not do so, what will happen to the savings that we are told will be generated if additional, potentially non-essential, actions are brought?
In an intervention earlier, I asked a question to which I did not receive a satisfactory answer. The Minister said that a finding of fact in a family law case involving domestic violence would enable people to jump the hurdle, but I am not sure what kind of case he was referring to. An application for protection or for an injunction would be covered, but how will people gain access to the family court to secure that finding of fact if they cannot obtain legal aid in the first place? I do not agree with the suggestion that the Bill will widen the scope for qualification for legal aid.
I was concerned by some of the language used by the Minister. It reminded me strongly of things that I thought had ended. I remember that the police often used to say that women made up these stories, because it was not uncommon for women to report violence to the police and then “retract” their allegations. The police would say, “He will have his feet back under the table by tomorrow, so there is no point in doing anything.” That demonstrated a complete misunderstanding of the nature of abusive relationships, and of the pressures that were frequently placed on women to go back or take their men back—pressures exerted, sometimes
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inadvertently, by children whose mothers tried to put their needs first, or by other family members saying, “You have made your bed and you had better sleep in it”, or “Are you doing the best thing for the sake of the children?” That is not to speak of the financial and other practical pressures that may be imposed.
Mrs Moon: All too recently the Government wanted to give anonymity to male rapists. Now women who face domestic violence will not receive the protection that should be offered to them. The Government are failing to take account of what we know about the implications for women and children who, having experienced domestic violence earlier in their history, end up in the criminal justice system. Is it not the case that they do not understand what happens to women and children—
Mr Deputy Speaker (Mr Lindsay Hoyle): Order. We must have shorter interventions.
Sheila Gilmore: I agree with my hon. Friend. Earlier speeches gave us the impression that we were retreating to a previous position, and that much of the ground that many of us thought we had gained might be lost. That would be highly regrettable, and I hope that it is not the case. I hope that, even at this late stage, the Minister will reconsider his opposition to our amendment.
I was heartened to read in the Sunday papers that members of the minority party in the coalition were up for a fight on these issues. I hope that that was not just more Sunday paper grandstanding, giving a false impression to many campaigners and others who have been hoping against hope that the Government will see reason.
7.15 pm
Mr Buckland: It is a pleasure to contribute to the Report stage of the Bill. As a Government Back Bencher, I sat through and took an active part in the debates in Committee. They were comprehensive and dealt with many issues, not least the definition of domestic violence and the proposed criterion by which applicants may in future be able to benefit from representation via legal aid. I make no apology for having expressed, in an earlier intervention, what I considered to be reasonable concern about the application of the criterion. However, I think it important for us to bear in mind that the debate is not about the rights of women as against an approach that would deny them those rights.
Although Opposition Members have made some excellent contributions, one intervention on the speech of the hon. Member for Edinburgh East (Sheila Gilmore) betrayed a complete misunderstanding of the Government’s approach to the granting of legal aid to vulnerable people. No one is suggesting that there should be an end to legal aid for victims of domestic violence. Far from it. The Government are saying that there should be that protection, there should be that level playing field, and there should be that intervention. People who have been victims of domestic abuse—I prefer that term, because I consider it to be a wider and fairer definition—may be women or men, and they come from a variety of backgrounds. Such abuse knows no social or economic division.
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I speak on the basis of nearly 20 years of experience, having prosecuted and defended in cases in which domestic violence was a factor. It is, perhaps, appropriate for me to chart from my personal experience as a criminal legal aid lawyer—although, as I have not practised in civil legal aid in recent years, I have no particular relevant interest to declare—the evolution of the courts’ approach to domestic violence. I remember the days when the phrase “It’s only a domestic” was used to describe these scenarios. That was wholly unacceptable, wholly wrong, and, according to our present standards, archaic. We have come a long way since those unfortunate days, and the courts have rightly been brought face to face with the realities of violence in the home.
Having met hundreds of victims of violence and abuse, I know that many of them do consider themselves to have been victims of domestic violence in the first place. They are people who were involved in a loving relationship, many of whom harbour the hope that they may return to their abusive partners. They are confused and vulnerable. Many are caring for children who have witnessed, or have been a party to, what has happened in the home. They do not know where to turn.
Giving evidence in court is a tremendous ordeal for such people, and many of them do not go through with it because they see it as a way of reliving their experiences in the home. The level and variation of their vulnerabilities is quite complex. I think, for example, of women who, having nowhere else to turn, go to refuges such as the one in south Swindon, in my constituency, which provides an excellent service for vulnerable women and their families. They are not mentally in a position to start immediate proceedings, whether those proceedings constitute a complaint to the police or the instruction of a solicitor. At that stage, when they come to the refuge, they have nowhere else to go and are literally in a state of desperation. They are not mentally prepared for the ordeal of having to go to the authorities. We must bear that in mind when considering the test applied to the finding of fact.
I know that the Opposition had that matter in mind when drafting amendment 74. I have looked very carefully at their proposal, and I sympathise with the motive behind it. Some of it has merit, but there are problems with it because it would not cure the particular mischief that Opposition Members have said could happen. None of us wants there to be any artificial inducement for people to claim that there has been domestic abuse when it has not happened, and my concern is that the amendment would not shut the door on that problem. The Government are right to identify that potential problem, and it was mentioned time and again in the consultation to which the Minister referred.
Glenda Jackson: With all due respect, I am having difficulty following the logic of the hon. Gentleman’s argument. He seems to be basing it on the belief that the Government’s desire to find fact is central and essential, yet he has already stated that many women who suffer severe domestic violence are in such a mentally discombobulated state that they find it impossible to speak to the authorities. We have all read recently of scandalous cases in which the authorities have markedly failed to protect women, even though the facts have been written in capital letters. Will he clarify his argument?
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Mr Buckland: I am very grateful to the hon. Lady, and I am happy to do so. We agree that when a woman presents herself at a refuge, there can be an element of discombobulation, to use the hon. Lady’s word. However, there comes a time—perhaps in a matter of days, or even longer in the case of particularly vulnerable victims of domestic abuse—when, with the support and help of professionals in the refuge or elsewhere, they are able to make a complaint. They can make a complaint to the police, in the form of either a telephone call or attendance at a police station with support, or they can get help from a solicitor and give them instructions to bring a case for a civil injunction or an ouster order. That has to follow. My point was that it is unfair to expect women to make a complaint immediately, in the hours that follow their departure from home. That is also true in many other contexts.
I think the hon. Lady and I would agree that, in the case of rape allegations, the rather worrying aspect in the past was that the victim was often asked, “Well, why didn’t you go to the police immediately?” We know that that is not a good argument when it comes to serious offences such as rape, which can take days, months or years for people to report. The point I am seeking to make is that there has to be some complaint procedure in the end.
Proposed sub-paragraph (10)(k) in amendment 74 uses the term
“other well-founded documentary evidence of abuse”.
I know it is difficult to choose a precise phrase that sums up what the amendment’s proposers would regard as a sound basis of fact, but that term is open to too much interpretation when it comes to determinations on the granting of legal aid.
I think the proposers of the amendment are perhaps on sounder ground in proposed sub-paragraph (10)(h), which mentions
“an undertaking given to a court that the perpetrator of the abuse will not approach the applicant who is the victim of the abuse”.
If there is any criticism to be made of that, it is that it is perhaps drafted a little too precisely. Many undertakings given to courts in relation to domestic abuse include not just non-approach but other prohibitions regarding particular conduct, contact and other aspects of the mischief that is the subject of the proceedings.
It is important that we consider the particulars of the matter, because when parties come to court with a claim relating to domestic abuse, there is quite rightly an impetus for compromise. The parties represented by solicitors or counsel rightly see whether proceedings in the form of evidence given and tested before a judge can be avoided by undertakings being given. “Undertakings” is a legal word for promises given by one or other party regarding future conduct. In fact, in many cases both parties make promises not to behave in such a way as to cause future strife. That is laudable, and it has been the practice in the civil courts for many years. It saves court time, it saves victims of domestic abuse having to undergo the trauma of giving evidence, and it looks to the future by trying to draw a line under the sins of the past with regard to the conduct of people who have been in a relationship involving domestic violence.
Let us put ourselves in the position of a solicitor or legal adviser who has to advise a party to such proceedings before any decision is made about the giving of undertakings. I see a problem occurring, because if
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undertakings are not to qualify for the purposes of obtaining future legal aid in domestic violence cases, solicitors will have to advise their clients that, if they accept undertakings, that could prejudice any claim for legal aid.
That worries me, for two reasons. First, it could provide a perverse incentive for more litigation, which could result in fewer undertakings being given and a concomitant loss of court time and increase in expenditure. Secondly, it would place legal advisers in a very difficult position when it came to the giving of proper advice. Solicitors or barristers should be there to give advice based on the evidence in the case, rather than on any future contingency that may or may not occur.
Could there not be a way through that problem by parties in the case, through their legal representatives, inviting the judge who presides over the proceedings to indicate his or her view of the strength of the evidence? If there were an injunction in which the parties were minded to accept undertakings, the judge might say, “In this particular case I think there was very strong evidence that could have supported the granting of an injunction.” The legal representatives could then use that if there were any future domestic abuse leading to a legal aid application. I urge the Government to consider that potential solution to the problem, as I believe it could help not only the parties in a case but those who advise them legally.
This debate should not be about whether one party or another is sound on domestic abuse. The truth is that there is a welcome and proper consensus about the seriousness of the incidence of domestic abuse in our society. Politicians, the police and all agencies are determined to stamp it out, intervene prior to violence taking place and deal with the root causes of why one partner in a relationship should choose to abuse the other, whether emotionally, financially, physically or otherwise. This debate is not about whether we believe domestic violence is a problem; rather, it is about how the criteria are set. It is therefore a rather narrow debate, and it deserves more mature reflection than some Opposition Members have thus far given it. [Interruption.] I am sorry that Opposition Members do not consider 20 years of experience of actually dealing with domestic violence cases to be important, because I would like to think that those of us who have dealt with victims of domestic violence have a contribution to make, and I bitterly resent any Opposition suggestion—especially in sedentary interventions—that I am deliberately prolonging these proceedings. I am not doing so, and if that accusation is repeated, I shall raise a point of order.
7.30 pm
Glenda Jackson: In the hon. Gentleman’s argument—and, more centrally, in the Government’s argument—no consideration is given to the possible consequence that what I regard as a crime may lose that classification of criminality, depending on whether the sufferer is or is not granted legal aid. Surely that is a very dangerous road for us to go down.
Mr Buckland:
I am, as always, grateful to the hon. Lady because she makes measured contributions, and I shall respond to her point. A distinction must be drawn between the scenario in question, which is a civil legal aid scenario, and the concern that she expresses about
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the potential decriminalisation of what I agree is a serious crime. The tests are different; as the hon. Lady knows, the evidential tests are different, and, if anything, the evidential hurdle would be higher in the criminal scenario.
I have some sympathy with those Opposition Members who said that a uniform definition of domestic violence, not just in the legal context but across the whole activity of Government, would be welcome and a step forward. The Association of Chief Police Officers definition is largely sound, although I do have one criticism of it: it does not mention children. Domestic violence can, of course, be directed towards, or be conducted in the presence of, children. The restriction to adults alone is therefore perhaps a deficiency, and all of us, as legislators and campaigners, should reconsider that.
Mark Menzies (Fylde) (Con): It is important that we do not think of this issue only in terms of the relationship between a husband and wife, because domestic abuse can also occur in other circumstances, such as where people take in an elderly parent. That may seem a good idea at the time, but subsequently events might take a different turn and the elderly parent may therefore also become a victim of abuse.
Mr Deputy Speaker (Mr Lindsay Hoyle): Order. The hon. Gentleman has only recently entered the Chamber, and he ought not to have intervened so soon. It is, of course, up to the hon. Member for South Swindon (Mr Buckland) to decide if and when to take interventions, but may I remind Members that they ought to make sure they have been in the Chamber for some considerable time before seeking to make interventions?
Mr Buckland: I am extremely grateful to my hon. Friend for making the point about elder abuse. It often occurs in a domestic scenario, and we, as policy makers, should also consider it when setting out a unified cross-Government definition of domestic violence.
Jeremy Corbyn (Islington North) (Lab): Earlier, the hon. Gentleman made the valid point that in the past the police did not take domestic violence seriously. Does he agree that there is currently a problem in that the police often do not take elder abuse seriously, and often avoid getting seriously involved in such cases because it is not a specific crime?
Mr Buckland: The hon. Gentleman is right, and I am sure that he will have come across appalling instances of the mistreatment of relatives when reading the contents of his mailbag and inbox—as, indeed, we all have. In that scenario, the police often face the same difficulty that confronts them when dealing with cases involving vulnerable, and often young, women who are the victims of domestic violence: the complainants—the victims—are often not in a position to provide clear evidence. Because of their vulnerability or their age, they are seen as a soft target who might crumble if put under pressure in court. That is why it is incumbent upon all of us to consider different mechanisms in which their particular vulnerabilities can be accommodated so that the truth will out.
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Sheila Gilmore: I would like to know where the hon. Gentleman’s speech is going. This debate is about the fact that legal aid is being withdrawn for family actions except in very limited circumstances where there is domestic abuse. Fascinating though this discussion of elder abuse is, I do not understand where we are heading.
Mr Buckland: I am sorry the hon. Lady takes that view. I listened to her speech very carefully, and I was glad that she eventually returned to the topic under discussion because, with respect, I must say that at one point she was addressing an entirely different scenario. That may still exist in the imaginations of some Opposition Members, but it has largely disappeared from the imaginations of the occupants of the Government Benches, on which there is consensus among the parties.
I make no apology for dwelling at length on this issue. It deserves careful consideration at this stage of our deliberations on the Bill, and I would like their lordships to ponder what has been said about it. I therefore bitterly resent the suggestion that I am deliberately padding out my remarks.
This issue should be addressed by Ministers not only at the Ministry of Justice, but at all other Departments with a direct role in domestic policy—such as the Department of Health and the Cabinet Office. They must all think very carefully about the benefits of a unified definition of domestic abuse and what that can bring, not only to the workings of Government but to all victims and potential victims. Unless we get a grip on the root causes of this problem, the House will return to it year after year, and there will be not only constituency examples to ponder, but a general and depressing pattern of abuse in the home.
I have carefully considered Opposition amendment 74 and, as I have said, it is not without merit, but although it has been drafted carefully in some respects, it does still leave the potential for mischief, which we must avoid when addressing the granting of public funds.
I am sure the Minister has listened carefully to what has been said on both sides of the House, and that he will go away and consider the important points that have been raised. None of us wants to see a scenario whereby genuine victims of domestic abuse lose out and end up being exposed to situations such as those outlined by Members both in this debate and in Committee.
These issues should not be the subject of political knockabout because they involve real people who have suffered real harm, and who continue to be at risk. It is for those reasons that I have played what I hope has been a constructive part in this debate.
Ben Gummer: As ever, it is difficult to disagree with even a scintilla of what my hon. Friend the Member for South Swindon (Mr Buckland) has said. As in Committee, we have had a constructive debate on this subject, and especially so on this occasion as so many contributors on both sides of the House with experience of dealing with domestic violence have spoken.
I am perfectly happy to concede that my experience and understanding of the issue under discussion is very limited, but ever since becoming a Member of Parliament in 2010, shocking case after shocking case has been laid before me in my surgery, and I have seen the work done by the various institutions in my
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constituency that deal with domestic violence. I was not a specialist in this area before, nor would I be able to lecture some on the Opposition Benches on it, so the intervention by the hon. Member for Edinburgh East (Sheila Gilmore) was particularly important in saying that we had come a long distance on how the police and agencies deal with domestic violence, and it is important that we do nothing to retard that.
With that in mind, I find it surprising that the tone of some contributions would suggest that on this issue there was division along political lines—one Bench against another. My hon. Friend the Member for Broxtowe (Anna Soubry), who cannot be here today because she is in hospital, has campaigned against domestic violence, especially violence against women, for many years. My hon. Friend the Member for South Swindon (Mr Buckland) has not only sat on the bench recently dealing with cases where domestic violence had been an issue in the criminal court, but prosecuted and defended on that matter. It therefore behoves hon. Members, particularly some on the Opposition Front Bench, not to shout and hurl insults at Conservative Members who wish to give a detailed and reasoned explanation of their views, and not to suggest that there is political division between us on the matter of domestic violence.
I remind Labour Members that the Government are going to produce a comprehensive strategy on tackling domestic violence shortly. I look forward to seeing it and I hope that it will draw together the various threads that we have heard about in today’s debate. That needs to happen because one part of government does not speak to another, just as parts of local government and the local police force do not speak to one another, as all of us will have found locally time and again.
One example will suffice in that regard. It concerns the most horrendous attack on a constituent whose husband had been released from prison on licence. Even though there was a multi-agency public protection arrangement—MAPPA—protocol set up around this gentleman, the attack was revealed only because of a revelation made by the six-year-old child of my constituent in their primary school. The school had never been involved in the MAPPA discussions about this offender, even though, had it been, the abuse would have been identified some weeks beforehand. I hope in highlighting this to say that the impression that we can solve the problem of domestic violence via legal aid and the courts —I know that this was not all Members, but the impression was given—is fundamentally misconceived.
We will deal with this problem—this will be a very long haul—only if we take a cross-governmental approach, and not one led by what happens when things get to court, let alone when they get half way through. The hon. Member for Bishop Auckland (Helen Goodman) correctly said that women who report to the police have typically had 20 incidents of assault prior to that moment. We need to deal with things before then. The suggestion that we must be able to solve all this in the definition of the domestic violence protocols within this legislation—
Fiona Mactaggart (Slough) (Lab): Is not the issue whether the victims can have access to the solution? This is not about the state or the Government solving it. For many victims, it is only through getting legal aid in order to get an injunction or similar that they can solve the violence they face.
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Ben Gummer: Again, the hon. Lady speaks with far more experience than I on this matter, and I was getting to her point. I am merely suggesting that the idea that we can address all these problems of domestic violence through an overheated politicised discussion about where the Government are heading on this Bill not only misses the point, but will damage the cause at hand.
On amendment 74, which was tabled by the shadow Minister, I return to the point I made in my intervention. I regret the fact that he said that I was being pernickety, because many of the things that he is driving at have reason and substance behind them. However, there is a problem if we include, within a list of organisations that would help women to report, a general definition of
“a domestic violence support organisation”
without providing clarification about the efficacy of that organisation.
Mr Slaughter: The hon. Gentleman clearly was not listening when my hon. Friend the Member for Stretford and Urmston (Kate Green) pointed out that that definition is perfectly acceptable to the UK Border Agency, as are the others. It is a composite of definitions acceptable to Departments, so that is a rogue point. May I add that he is doing no service to this House by padding out this debate, as the hon. Member for South Swindon (Mr Buckland) did, when we have several other serious debates to come? If the Conservatives are afraid to debate social welfare legal aid, they should say so. Otherwise he should get on with it and allow the House to debate these important amendments tonight.
7.45 pm
Ben Gummer: Again, I regret what the shadow Minister has said. On several occasions, I have sat through three hours of speeches from him in Committee—
Ben Gummer: That was one speech. On several occasions, we had three-hour speeches where points were recycled and regurgitated without use to the legislative process. It is unfortunate that the hon. Gentleman claims that I am padding things out, as I hope that I am addressing points not yet raised in this Chamber. I am going to do so briefly. I feel I should do so, as although I am happy to admit that I am not someone from a legal background and that I do not have a previous interest in this area of domestic violence, I have the experience of sitting in the Public Bill Committee and understanding the arguments put both by the Opposition and the Government in this difficult area. I speak as a layman and I hope to offer my support to points made by Members on both sides of the House.
On amendment 113, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), we face a small issue about whether people from the European economic area are caught within this legislation. It will cover only a small handful of people, but the inevitable consequence of missing it out—if that happens—is that there will be some travesty and miscarriage of justice precisely in a case where someone falls through the gap. I hope that the Government will carefully examine that suggestion in the first half of the amendment.
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I also fully support what my hon. Friend the Member for South Swindon said about undertakings. I have heard much evidence from people practising in this field who give a reasonable argument that a counter-productive eventuality of this Bill is that, if undertakings are excluded, it could end up greatly prolonging cases, and not only to the detriment of litigants: it would also affect the costs of the court. I hope that his constructive and sensible suggestions, which come with considerable experience of sitting on the bench and acting as counsel, will be taken up by the Government as the fair-minded suggestions that they are.
More broadly, we have a problem on self-reporting. I hope that hon. Members, especially Labour Members, will bear me out on this. Anyone who has contact with the family courts and who talks to family judges will know about the impact that allegations of child abuse have had in private law cases. In the opinion of many counsel and judges, in the past few years, allegations of child abuse have increasingly been made far too readily when no substance is behind the claims. It would be unfortunate if, under the new regime, allegations of domestic abuse and domestic violence were made as a precept to gain legal aid, because that would devalue the claims other people make completely legitimately. That is what is happening in the courts at the moment with allegations of child abuse. Several judges have remarked to me that so often is it claimed that one party or another has committed child abuse, it is beginning to numb the senses of the judges hearing those cases. It would be wrong if a similar situation were to arise with this new regime. The Government must therefore phrase the definition of domestic violence very carefully.
I hope that the Government have heard the concerns of Opposition and Government Members, such as those of my hon. Friend the Member for South Swindon, those that my hon. Friend the Member for Broxtowe has voiced on several occasions, and those raised today by my hon. Friend the Member for Maidstone and The Weald (Mrs Grant). I can hear from the way in which the Minister has been replying that he understands that some sort of uniformity would be desirable across government and that some recognition of the problems of encapsulating a definition within the Bill will be made here or in another place.
The Opposition went into the last election saying that they would seek cuts to legal aid and that promise has been reiterated both by the Leader of the Opposition, in January, and the shadow Secretary of State, who is sitting on the Front Bench, on several occasions. However, in Committee, the shadow Minister tabled dozens of amendments, some of which were, by his own admission, contradictory and many of which were culled from the handouts given by lobbyists, which extended considerably the Committee’s deliberations when we could have been discussing the meat of the proposals as we have tried to do today. He came to the House with a new amendment having denied the Public Bill Committee the ability to consider properly many of the issues that we should have discussed.
Mr Llwyd: What about the fantastic announcement today of the three areas of law that are to be slid into the Bill tomorrow? We have not seen any of those proposals yet.
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Ben Gummer: As ever, I am pleased by the right hon. Gentleman’s intervention because he highlights an inconsistency in the Opposition’s argument. They cannot say on the one hand that the Government are not listening and that the legislative process does not work—he said earlier that the pre-legislative system was not working—but on the other, when amendments are made, that the Government are either committing a U-turn or not listening. I do not understand how the Opposition and the right hon. Gentleman can reconcile those two statements.
Mr Llwyd: The hon. Gentleman was waxing lyrical about the absence of time to discuss Opposition amendments, but his party is equally to blame in that we have not even had sight of their amendments. At least the Opposition amendments were available to be seen before today; we have not even seen the amendments that are the subject of today’s announcement. That is the point I am making.
Ben Gummer: The right hon. Gentleman misses my point about the Public Bill Committee. There are many issues that needed to be raised that we could have fleshed out at greater length, but the Opposition tabled so many specious amendments, many of which were completely contradictory—largely in the name of the shadow Minister, not that of the hon. Member for Stretford and Urmston (Kate Green), who is shaking her head—that we did not get to the meat of some of the issues in the amendment we are debating. Had we been able to discuss sub-paragraph (10)(j) of amendment 74, which the shadow Minister has tabled, we might have been able to improve the Opposition’s amendment so that it could be acceptable to Members on both sides of the House. Instead, we have an amendment that was tabled a couple of days ago with aspects that clearly would not hold up to further legislative scrutiny. It is a pity that we did not have that discussion in Committee instead of discussing a series of amendments, some of which I doubt the shadow Minister had even read before he started speaking to them.
Putting all that aside, a principal issue for me is that many of the amendments tabled by the shadow Minister in Committee would have committed his party to spending increases costing £245 million, but whenever I or other members asked whether the Opposition had any alternative spending plans, they told us to look at the Law Society’s plans. Unfortunately, the Law Society has had to revise its plans, which were found wanting.
Mr Slaughter: What does this have to do with the debate?
Ben Gummer: I am just coming to that if the hon. Gentleman will listen.
When they table amendments, the Opposition have a duty to explain how their changes would be paid for and what balances would be made elsewhere in the Bill, but so far we have had nothing to substantiate how they would do that, and neither do we have any idea how their changes would fit into the general pattern of the Bill. I cannot therefore vote for their amendment or that of the hon. Member for Brighton, Pavilion—amendment 113 —as neither is complete and nor have they been properly discussed.
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In conclusion, I hope that we can continue our proceedings without trying to politicise the issue of domestic violence. I hope we can discuss the precise provisions in the Bill without throwing what I feel have been intemperate and sometimes misjudged accusations at one side purely because they happen to disagree with the assertions put by the other.
Mr Djanogly: First, let me confirm to my hon. Friend the Member for South Swindon (Mr Buckland) and other hon. Members that I have listened carefully to the debate, which has been informed and varied. A significant number of general and more specific issues have come up in our deliberations. I agree with my hon. Friend the Member for Ipswich (Ben Gummer) that the debate has, in some ways, become too polarised given the significant agreement and consensus among all hon. Members about the need to counter domestic violence.
Given the number of issues to address, it is hard to know where to start, but I shall begin with the definition of abuse, which was mentioned by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Members for Stretford and Urmston (Kate Green), for Brighton, Pavilion (Caroline Lucas) and for Bishop Auckland (Helen Goodman). The accusation is that the definition of abuse in the Bill narrows the scope of legal aid in comparison with ACPO’s definition. The right hon. Gentleman said that the Bill weakened the definition of abuse. I can confirm to the hon. Member for Brighton, Pavilion that the definition in the Bill does not require physical abuse. Both the ACPO definition and the Bill definition are very broad and embrace abuse that is not physical, and it is difficult to see what description of behaviour in the ACPO definition would not be covered by the broad description of physical or mental abuse used in the Bill.
The right hon. Gentleman suggested that I said in Committee that to widen the definition of domestic violence would induce self-reporting. As I think my hon. Friend the Member for Ipswich was heading towards saying, that confuses the definition of abuse, which determines scope, and the criteria for an individual to qualify. The definition of abuse in the Bill is broad and it is difficult to see how it does not cover that which is covered by the ACPO definition. Neither definition says anything about how abuse is to be evidenced.
My hon. Friend the Member for South Swindon injected a sense of balance into the debate and I noted his condemnation of archaic and unacceptable language. I think we can all agree on that.
The right hon. Gentleman spoke about the Bill and ACPO definitions of domestic violence. To put an end to this issue, let me say that if any right hon. or hon. Member can write to me with a specific, concrete example of abuse that would be covered by the ACPO definition but not by the definition in the Bill I will give the issue serious consideration.
Kate Green: I am not going to give the Minister an example of that. If he is so sure that there is such an overlap, why not use the ACPO definition?
Mr Djanogly: I look forward to the hon. Lady providing her reasons why that should be the case.
The right hon. Member for Dwyfor Meirionnydd made a significant number of points for his significant number of amendments, most of which I covered in my
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preliminary remarks, and I do not intend to go over them all again. However, he mentioned two particular points that I did not cover, so if he does not mind I will concentrate on those.
It is not clear that amendments 92 or 93 would widen the category of services described in paragraph 10 significantly or at all. The definition of abuse used in the Bill is intentionally broad and not limited to physical violence, but it embraces physical or mental abuse. Abuse is stated to include sexual abuse and abuse in the form of violence, neglect, maltreatment and exploitation, but it is not limited to those examples. Therefore, we believe that it is sufficiently flexible to cover cases of genuine abuse, as is the intention. Both amendments refer to physical and mental abuse, which are already explicitly referred to in the Bill’s definition. Additionally, they refer to threatening behaviour, violence and emotional abuse, which are clearly within the scope of physical and mental abuse and so are unnecessary and add nothing to the breadth of the category.
Further reference is made to financial abuse. It is not entirely clear what that would cover outside the context of serious cases where the treatment of one party by the other in relation to the family finances amounts to physical or, in particular, mental abuse, which would include neglect, maltreatment and exploitation in the Bill’s definition, where it is clearly within the definition of abuse in the Bill. Where the financial abuse does not amount to or form part of physical or mental abuse, it could be argued that the amendment would widen the gateway beyond what might be ordinarily understood as abusive behaviour, but in a way where the effect is unclear. For instance, there is no special reference to financial abuse in the provisions of the Family Law Act 1996 to protect against domestic violence or in case law, in contrast to emotional or psychological abuse, so it is questionable what it would add in this regard.
However, the amendment also stipulates that any incident of abuse would suffice to come within the category. On one construction, that would make no difference since the existing definition does not require a course of conduct, but on another construction it might be argued that the explicit reference to any incident could be read as a fetter on the power to define what would be accepted as sufficient evidence of abuse through secondary legislation. That is because the type of evidence acceptable will reflect a certain degree of seriousness. For instance, a family court will not generally make orders relating to minor, one-off incidents, although it will do so in appropriate circumstances, such as a course of conduct of trivial incidents adding up to something more serious.
It is not clear that any challenge to secondary legislation requiring forms of evidence that in themselves are unlikely to arise from minor, single incidents would have any prospect of success, but the risk cannot be entirely ruled out. Were it impossible to prescribe the forms of evidence proposed to date, we estimate that the consequent opening up of eligibility would at the very least double the cost of the domestic violence gateway to £130 million per annum.
The part of amendment 23 that refers to violence or abuse
“between adults who are or have been intimate partners or family members, regardless of gender or sexuality”
is superfluous, since it duplicates the effect of paragraph 10(7), which sets out that for the purposes of
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the paragraph there is a family relationship between two people if they are associated with each other. That “associated” has the same meaning as set out in part 4 of the 1996 Act, where it is defined very widely and covers a range of relationships no less wide, and in some instances wider, than the ACPO definition.
Amendment 93 would widen the domestic violence gateway so that legal aid would be available for the potential victim in private family law cases where there has been an as yet unproven allegation of abuse, or of the risk of abuse. It would make the gateway extremely wide and, in effect, would mean that self-reporting would have to be accepted as sufficient evidence of domestic violence, making any other evidentiary requirements redundant. It would be difficult to limit very far the forms of evidence of an allegation of abuse, or of the risk of abuse, that would be accepted. We estimate that that would at the very least double the cost of the domestic violence gateway to £130 million per annum.
The amendment refers to allegations that person B has been abused by person A. In paragraph 10 of schedule 1, it is person A who is the victim, and person B who is the abuser—the other way around. However, the amendment does not change the opening proposition, which is that the services are provided to person A. This appears to have the perverse consequence that if the proven abuser, person B, alleges that the proven victim, person A, was the abuser, person A would qualify more easily for legal aid as they would then have to give as evidence only an allegation by person B of abuse or the risk of abuse. That is almost certainly a drafting error, but if it is not, and the intention is instead to ensure that legal aid would be available where either party might be the victim of abuse, that would be unnecessary.
In relation to amendment 97, the intended effect is unnecessary because section 37 proceedings are public law matters and it would be possible, in private law proceedings, for a court that is considering a section 37 order to adjourn so that the parents, if they are not already represented, may have access to legal aid and representation under the public law heading. The actual effect is rather wider. However, the amendment would bring the whole of family proceedings, such as proceedings for residence and contact with children, into scope where the court considers making a section 37 direction, rather than simply consideration of that point. Again, this may be a matter of defective drafting, but if so the entire amendment would be superfluous.
The right hon. Gentleman also asked whether an adjournment would introduce a delay in protecting a child. We would expect a court to adjourn a hearing only if it considered it safe to do so. The only way to avoid the potential of being a section 37 direction being made at a hearing involving unrepresented parents would be by providing legal aid for all private law children cases, which we believe would be a disproportionate response. There is already the potential for section 37 directions to be made in cases involving litigants in person under the present system, but as I have said, legal aid is available and will be in future to challenge such a direction.
A significant number of comments were made in relation to amendment 74. The hon. Member for Hammersmith (Mr Slaughter) indicated that he will
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want to press it to a Division, so I will spend some time on it. I agree that it is an important matter. He said that he understands our intent. Does he understand that we need to have savings in legal aid? I am not sure what he meant when he said that he understands our intent—
[
Interruption.
]
He says that he will address that in a later debate, but I think that it is quite an important issue. In contrast to what he said, his right hon. Friend the shadow Secretary of State recognised in an article published only this morning that
“cuts need to be made”.
Looking at the amendments tabled by Opposition Members, I cannot see where those cuts will be made. We have had a little look at what they are proposing. The estimated costs of the Opposition amendments are: £20 million in debt matters, £5 million in employment matters, £15 million in housing matters, £25 million in welfare benefits matters, £10 million in clinical negligence matters and £170 million in family law matters. The total is £245 million. The taxpayer deserves to know where the money for that will come from.
Let me address the actual effect of amendment 74. To set out in the Bill the circumstances as specified in the amendment that should be accepted as evidence of domestic violence for the purposes of legal aid for the victim in a private family law case would mean that those circumstances, but not those that the Government intend to accept as evidence of domestic violence, would be set out in primary legislation. The Government would therefore have no power at all to amend those circumstances through secondary legislation. They would be in addition to any circumstances set out in secondary legislation for providing appropriate evidence of abuse. We expect that significantly more cases would receive funding if the circumstances set out in either amendment were accepted as evidence. The hon. Member for Edinburgh East (Sheila Gilmore) and others mentioned their concern about the issue of incentives for false allegations of domestic violence, but we received a significant number of responses to the consultation that expressed concern that there might be a rise in unfounded allegations of domestic violence, and the respondents expressing such concerns included the Law Society and the Bar Council.
Fiona Mactaggart: The hon. Gentleman is concerned that there might be a rise in unfounded allegations of domestic violence, but does he accept that if his proposals go through there will be an increase in the number of women who are victims of domestic violence and unable to access legal aid?
Mr Djanogly: No. Our proposals are aimed at ensuring that those who are subjected to domestic violence are kept within the scope of legal aid.
Many hon. Members have said, “Shouldn’t any incident of abuse trigger legal aid?” Some have said that we should limit it, and the hon. Member for Hammersmith has put in certain but, given his amendment, not very many limitations. The hon. Member for Edinburgh East accused me of being obsessed with false claims. I am not, but we need to appreciate that such a provision would have serious financial consequences, as it would lead to funding in cases in which the abusive behaviour, although unacceptable, might be very marginal.
Clearly, a single incident of abuse can be very serious, but a single one-off incident of non-physical abuse, such as angry and upsetting words spoken during an
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argument, can be relatively minor, because they have no real effect on the victim’s ultimate ability to face the other party in proceedings.
On amendment 74, specifically, my hon. Friend the Member for South Swindon, my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) and my hon. Friends the Members for Ipswich and for Maidstone and The Weald (Mrs Grant) asked whether we would accept undertakings given in civil proceedings as evidence of domestic violence, and I will look at that issue further. The Government’s current position is that a person can give an undertaking, for instance not to be violent towards family members, without admitting to domestic violence, meaning that undertakings may be given in cases where domestic violence has not taken place. We do not think that undertakings would provide sufficiently clear objective evidence that domestic violence has occurred, but we shall look into that further.
My hon. Friend the Member for Maidstone and The Weald also asked whether the fact that the definition of abuse is not specific will make its use more difficult in court, but the definition in the Bill will not be used in proceedings for domestic violence orders under the Family Law Act 1996. There is no definition at all of domestic violence in the 1996 Act, but the courts have experienced no difficulties, so neither the Bill’s definition nor the ACPO definition will be used in such proceedings.
The hon. Member for Hammersmith discussed a finding of fact in a family law court, and he asked how people would get legal aid in that context. They will not get legal aid to bring the case, as legal aid will be triggered only when the court has made a finding of fact, but an applicant will be able to submit written evidence of any abuse if relevant to proceedings, and a judge will be able to intervene to prevent inappropriate questioning.
Several hon. Members, including the hon. Gentleman, made a series of points about the specifics of amendment 74, so let me deal with those, including what would be accepted from various people as evidence in order to qualify for domestic violence. Accepting police cautions would be inconsistent with our proposal to include in the criteria “criminal convictions unless that conviction is spent”, as simple cautions are not convictions and become spent immediately.
A harassment warning is notice that a complaint has been received by the police; it is not considered to be proof that an offence has occurred, and police are not obliged to investigate the allegation. We therefore do not consider that harassment warnings would provide sufficiently clear objective evidence that domestic violence has occurred.
8.15 pm
On police investigations or call-outs, we do not consider that an investigation by the police or the police having been called out would provide sufficiently clear objective evidence that domestic violence had occurred. The call-out or the investigation could be inconclusive, or the police might determine that domestic violence has not taken place, but any such evidence could be taken into account by a court when assessing whether abuse has occurred, and if it goes on to make an injunction or a finding of fact that it has, and the victim is at risk, legal aid will be available, so all those sources of evidence could be factors in triggering legal aid, even if not they are sufficient in and of themselves.
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The hon. Member for Bishop Auckland discussed whether we should accept admission to a refuge, and other hon. Members might have made the point as well, but we are concerned that to include admission to a refuge in the criteria would be to rely on self-reporting and to place pressure on those organisations that provide refuges. Their assistance might be sought with greater frequency if they had a role in triggering access to legal aid.
The hon. Member for Hammersmith and others asked whether we would accept evidence from medical professionals, but we are not convinced that they would be best placed to assess whether domestic violence has occurred. They might witness injuries, but it might be difficult for them to determine how they had occurred, and again there would be strong elements of self-reporting, rather than objective evidence. Evidence from medical professionals could, however, depending on the circumstances and on a judge’s assessment, lead in the family courts to a finding of fact that domestic violence had occurred, and that would trigger funding.
Another hon. Member asked whether victims of domestic violence and their children could be cross-examined by the perpetrator, but judges have the powers and the training to manage the situation and to ensure that it is handled sensitively for the person giving evidence. For example, judges can have questions relayed to witnesses, rather than asked directly; they can use video-links; and they can intervene to prevent inappropriate questions. Under the current legal aid system, that is often the case and often has to happen.
The hon. Member for Hammersmith stated that only a minority of women apply to the courts for a protective injunction against domestic violence, because, for instance, they do not trust the judicial system, so they will not get legal aid. Domestic violence is of course a very serious issue, and of course victims need support in all sorts of ways, but there is a distinction between all victims of domestic violence and those who seek to take legal action in the family courts in relation to child contact or financial issues. Such women are prepared to go to court, and they may well be more likely to apply for an injunction.
The right hon. Member for Dwyfor Meirionnydd and others suggested that, for the Government, money comes before safety, but that is entirely rejected. Yes, we do have to make savings from a legal aid system that costs this country £2.2 billion a year, and we are proposing £350 million of savings during this savings period, but we will spend an estimated £120 million a year on private family law, including domestic violence, after the changes. As I said earlier, this includes funding for about a quarter of the private family law cases that currently receive legal aid.
I think it was the hon. Member for Hammersmith who said that women would often not do anything about domestic violence for fear of jeopardising their immigration status. I made some remarks about this earlier, and I shall not repeat them, but those are the cases that we are going to bring back into scope through Government amendments 59 and 63.
My right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) said that 61% of immigration appeals were successful, and that that demonstrated a need for legal aid for such cases. However, most appeals are factual and are not brought on points
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of law. I said to him earlier that I would consider further the question of complex cases, and I will come back to him on that.
Sir Alan Beith: What that 61% success rate on appeal demonstrates is a bad decision-making system. Ought not the Minister be more sympathetic to the Justice Committee’s view that Departments that make their decisions so badly that they generate large numbers of successful appeals should be penalised, perhaps even to the extent of contributing to a fund for the advice agencies that help the people who are affected?
Mr Djanogly: My right hon. Friend makes a good point. High levels of successful appeals perhaps show that too many cases are going before the tribunals in the first place. The other day, I saw a figure of about 80% for special educational needs tribunals, which was not very impressive either. I can also tell him that I am personally engaging with Ministers in the Home Office, the Department for Work and Pensions and the Department for Education with the specific intention of getting them to work with the Department of Justice to improve their initial decision making. I am pleased to say that they are all are working with us, and that they want to make the system better. This is a matter of significant concern to me, not least because I would like to see fewer appeals relating to my Department coming through the courts and tribunals.
The hon. Member for Brighton, Pavilion (Caroline Lucas) talked about domestic violence, immigration and legal aid. She also talked about people who fall outside the domestic violence immigration rule, such as EEA nationals. As I mentioned earlier, we are looking at cases of EEA spouses who have suffered dramatic abuse. The right hon. Member for Dwyfor Meirionnydd mentioned immigration judicial reviews. I think that he accused the Government of putting appellants into a Catch-22 situation because legal aid would not be available for immigration appeals or for some judicial reviews. I can tell him, however, that people will still be able to appeal immigration decisions themselves and, as is often the case at the moment, they will still be able to get legal aid for a subsequent judicial review, as long as it is not on exactly the same or substantially similar issues, or on a removal direction. As I said earlier, we are making various exceptions to the exclusions, which will include ensuring that, when there has been no possibility of an appeal, legal aid will remain for judicial review.
My right hon. Friend the Member for Bermondsey and Old Southwark raised various points about immigration, and I will write to him about those. He specifically mentioned children, as did other hon. Members, so I shall briefly address that point. In most immigration cases, a child’s interests are represented by their parent or guardian. Most cases in which a child is unaccompanied involve an asylum claim, and legal aid will remain for those cases as at present. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support. Legal support in such immigration cases may be found, if needed, from law centres and from pro
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bono legal representation. The Refugee Council provides services for separated children, which can include litigation friends.
A number of hon. Members asked how we justified plans that could disproportionately affect women. That question has also been asked in relation to disabled people, ethnic minorities and people who live in rural areas. The equalities impact assessment, published alongside the Government’s response to consultation, sets out our analysis of how the reforms will affect people with protected characteristics as set out in the Equality Act 2010. We have identified the potential for the reforms to have a greater impact on some groups, but we believe that those impacts are proportionate, and justified by the need to meet our objectives, including the pressing need to make savings from legal aid. We are also keeping discrimination claims relating to a contravention of the Equality Act 2010 within the scope of legal aid, which we consider will make a significant contribution to the fulfilment of our public sector equality duty.
The hon. Member for Stretford and Urmston asked about the removal of legal aid in many family cases, which she said would remove access to justice from many people. She asked how that could be right. Legal aid will remain available for family mediation and private family law cases, including private law children and family proceedings and ancillary relief proceedings. We want to encourage more use of such mediation. In ancillary relief cases, courts will be able to make orders for payment against a third party or a party who has the means to fund the costs of representation for the other party. Removing costly and often unnecessary legal aid does not mean removing access to justice. Litigants in person already feature in the justice system. Judges and magistrates currently assist litigants in person without compromising their impartiality, and we expect that to continue.
Finally, I was asked whether we expect all cases to be resolved through mediation. As I said earlier, the answer is categorically no. Cases involving domestic violence and child abuse, and emergency cases will still not be required to go through mediation. In addition, exceptional funding will be available when necessary for the UK to meet its international and domestic legal obligations via a proposed scheme for excluded cases. On that note, I rest my case.
Mr Elfyn Llwyd: I beg to move amendment 80, page 99, line 21, leave out ‘other than’ and insert ‘including’.
Mr Deputy Speaker (Mr Lindsay Hoyle): With this it will be convenient to discuss the following: Amendment 85, page 110, line 18, leave out ‘other than clinical negligence’.
Amendment 143, page 110, line 18, leave out ‘other than’ and insert ‘including’.
Amendment 86, page 110, leave out lines 28 to 30.
Amendment 142, page 110, line 32, at end insert—
19A (1) civil legal services provided in relation to Clinical Negligence.
(2) In this paragraph clinical negligence means breach of duty or care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services)’.
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Amendment 88, page 111, line 4, leave out ‘other than’ and insert ‘including’.
Amendment 132, page 118, line 27, after ‘negligence’, insert
‘with the exception of clinical negligence’.
Mr Llwyd: I will be brief, because other hon. Members wish to speak and, crucially, we need to get to the social justice provisions. The purpose of amendment 80 is to bring clinical negligence back within scope in cases involving abuse of a child or a vulnerable adult. Amendment 88 is designed to retain specific provision for tort and damages claims engaging European convention rights, and extending provision to cases involving clinical negligence. Amendments 85 and 86 are consequential, and cover the abuse of a position of power by a public authority. They would specifically provide for cases involving a particularly serious variety of public wrongdoing and would remove the exclusion of clinical negligence cases in such a context.
Taken together, the amendments reflect my concern, which I know is shared by many hon. Members, about the huge gaps in protection of the vulnerable that will come about as result of implementation of the exceptions to funding by legal aid. What is perhaps most concerning in such instances is that individuals will come up against the state during proceedings. People involved in cases of clinical negligence by a public authority are, by definition, at their most destitute. Frequently, parents or other family members will bring cases against public authorities resulting from traumatic injuries sustained by their children and their relatives.
As the hon. Member for Makerfield (Yvonne Fovargue) said in Committee:
“the inequality of arms is never more obvious than when an individual comes up against a decision made by the state”.––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 7 September 2011; c. 327.]
That is because the state will always have access to full and expert legal advice, and will often have a team of lawyers at its ready disposal. That is even more ironic when we consider the stark fact that the state should have a responsibility to ensure that every individual has the means to hold it to account. I said that on Second Reading, and I do so again. In the reforms, the Government seem to have lost sight of that all-important state duty to support the vulnerable, as well as to protect them.
The Minister said in Committee that there is often a viable source of alternative funding for cases of clinical negligence through contingency fee arrangements. That sounds all right, but is not as simple as it sounds. What about the people who, on entering into such an arrangement with solicitors, would not be able to afford a policy to cover them for the initial necessary medical examinations? I know that some ground has been given on that, but I would be grateful to hear more. For many parents, for example, contingency fees cannot be the answer since they do not have the money up front to buy a policy to provide cover when making an arrangement with solicitors. Indeed, very few firms would take on a clinical negligence case on a no win, no fee basis because of the complexity and specialism involved in this area of civil law.
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The Government seem content to find fault with solicitors in this matter. Indeed, they seem almost to assume that lawyers tend to drag things out in proceedings.
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I can assure this House that it is quite the reverse. In my experience of litigating against health authorities, they are among the most unco-operative bodies one will ever encounter. Often, they withdraw or even hide evidence until the very last minute, and deliberately obfuscate. Individuals finding themselves litigating in person against these authorities are in a dead-loss situation.
Stephen Phillips (Sleaford and North Hykeham) (Con): The hon. Gentleman is making a very serious charge against public authorities, and indeed those who represent them, by suggesting that they obfuscate and withhold evidence in circumstances where their disclosure obligations are very clear under the civil procedure rules. Can he put some flesh on the bones and substantiate his allegation?
Mr Llwyd: I do not have any cases with me today, but I can assure the hon. Gentleman that I would not make the allegation without some evidence.
Karl Turner: Does the hon. Gentleman agree that it is often the public policy of these authorities—certainly, in my experience, the national health service—to delay? I could not provide any examples either, but in my experience, they do delay.
Mr Llwyd: That is the point. Unless and until there is full disclosure at the very earliest point, these cases will be drawn out until the evidence is available. Everybody knows that any case against a health authority has to rely on expert evidence, and it is impossible to have that without experts’ reports from the health authority. This is the conundrum facing people who are often two, three or four years down the road and still no nearer to a conclusion. That is exactly the position that many people report, and that is why lots of these cases are, as we hear, high-value cases.
Stephen Phillips: The hon. Gentleman will obviously have absolutely no doubt about the bona fides of the charges that he is effectively laying at the doors of the national health service and others, but does he ascribe the position to problems with management or to seeking to protect individual medical practitioners? The two seem to me to be very different.
Mr Llwyd: I would speculate and say that it is probably to do with management rather than protecting individual practitioners, but I cannot give any assurances on that. What I am saying here today is common knowledge out there; it is not a new allegation that I have dreamed up just to try to grab a headline at this late stage. [ Interruption. ] To answer the hon. Gentleman’s question honestly, I do not know, but I would guess that it is a management issue, because whenever there is a claim, it is reported to management immediately—on the very first day, I expect.
Stephen Barclay (North East Cambridgeshire) (Con): If it is a management issue, then that, as we have seen in the Public Accounts Committee, goes to the issue of accountability and governing structure. Should not the hon. Gentleman therefore be focusing his remarks on how those issues are tackled rather than trying to perpetuate an ever-increasing legal aid bill, which amounts to fixing the symptoms of the problem rather than addressing its cause?
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Mr Llwyd: If the hon. Gentleman will bear with me, I will go back to my script; he may be interested to hear this part because it deals with the point that he rightly makes. If there were a duty on responsible bodies such as health authorities immediately to come clean with evidence, there would probably have been no need for these amendments because we would not be in the position that we are in. Side by side, on a parallel basis, we need to ensure that all health authorities, and any public bodies, are responsible in their dealings with the public; that goes without saying.
There are about 1 million adverse occurrences or accidents in the NHS every year, and about 10,000 lead to action being taken against the NHS. It is, therefore, a big area of law. In the earlier debate, the point was made that 66% of immigration appeals succeed because the initial decision was bad. In this instance, there would be far fewer long, drawn-out cases if all health authorities and public bodies were under a duty to disclose fully and urgently, and there would not be the astronomical costs that some of these cases result in.
Stephen Barclay: The right hon. Gentleman’s remarks are addressing supply, not demand. He is not addressing why there are so many clinical negligence cases, nor why the insurance that is charged is going up exponentially. There are existing rules for special severance payments for whistleblowers but, as was found in the National Audit Office’s report in 2005 and the Public Accounts Committee’s recommendations in 2006, there is still a problem in the way whistleblowers are tackled in the NHS and in the way such cases are dragged out. That is a failure of the previous Government. It is to that failure that he should address his remarks; not to the fact that we continue to fix a problem that is growing exponentially year on year.
Mr Llwyd: The number of cases each year because of accidents or negligence has not really increased. It has been around the 10,000 mark for many years. There has not been a sudden rise in specious claims in this area. This is not a growing market. I hear what the hon. Gentleman says and I agree that we should ensure that there is far better practice.
Such cases are capable of being resolved far earlier and without recourse to litigation. Medium-sized cases are often resolved by the hospital or health authority without resorting to litigation, and that is fine. However, in large cases, such as where a child is brain-damaged at birth, there is no appetite from either side to settle it in the hospital. Such cases are often extremely expensive because the child’s life has been ruined for their entire existence. That is why I raise these matters.
I hope that the hon. Member for Kingston upon Hull East (Karl Turner) will make a contribution because I know that he, too, has been campaigning on this issue. I will confine my remarks to those few points.
Tom Brake: I rise to make a few brief comments, particularly in relation to amendment 132, which appears in my name.
I have been ably supported by Action against Medical Accidents, which campaigns on the issue of clinical negligence and for a statutory duty of candour in relation to accidents in the NHS. If there was a statutory duty to confirm, at the outset, that an accident had
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taken place, it might ensure that many cases involving the NHS, which can drag on for many years, were brought to a much earlier conclusion. If, as was suggested earlier, it is management who get in the way of resolving such cases, they would not be able interfere to the same extent to delay proceedings—if, indeed, that is what they do—if confirmation that an accident had taken place was given at the outset.
I will focus on legal aid representation in relation to medical negligence. I welcome the confirmation we have been given that £6 million or £7 million of the £16 million that is currently spent on legal aid for medical negligence will be retained under the “Exceptional Funding” heading. The sum that is being discussed is therefore in the order of £10 million. Although we have received assurances that exceptional funding will be able to deal with many of the intense cases with which Members are familiar, such as cases of babies who have been seriously injured at birth, the question remains: which cases will not be funded once that £10 million is withdrawn from legal aid for medical negligence cases?
Given that the Government have a significant budget deficit to address and that this measure is part of that programme, I do not want to come empty-handed when it comes to saying where additional funding could come from if the Government were to restore that money. Later on, we will debate amendment 144, which is in my name. It would introduce a presumption against sending people to prison for a prison sentence of six months or less. The organisation that has done the calculations suggests that that could save the Government up to £400 million a year. That might be a slight or even a gross exaggeration of how much money could be saved, but it would be not unrealistic to expect that savings of the order of £10 million would be achievable if the Government were to look kindly on that amendment.
Medical negligence is high-profile. It might affect a relatively small number of families, but when it does, it does so dramatically.
Karl Turner: Does the right hon. Gentleman want his amendment to be pressed to a Division?
Tom Brake: My colleagues and I will get used to interventions of that nature, but the hon. Gentleman will not be surprised to hear that I am expecting some reassurance from the Minister that the Government do not have a closed mind. Even if we cannot make progress in the House, there could be opportunities in another place to do so. I am just putting down a marker for the Government that they should entertain that idea.
Stephen Phillips: As I understand it, amendment 132 relates to medical negligence within the scope of the European convention on human rights, which is excluded from legal aid in the Bill. If it is a probing amendment, will the right hon. Gentleman indicate the sort of cases he has in mind? I cannot envisage a case involving convention rights that would involve medical negligence.
Tom Brake:
I thank the hon. and learned Gentleman for his intervention, even if he has identified a flaw in my proposal. The funding available for legal aid in cases of medical negligence deals with the serious cases with which Members will be very familiar, such as obstetric accidents. However, I am seeking clarification from the
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Minister, because although some of the funding for dealing with such cases will still be available through exceptional funding, some of it will no longer be available. I am seeking confirmation from the Government that all very serious cases will be addressed through the exceptional funding route. I hope it will be possible for the Government to identify additional funding to address the funding gap for any remaining cases, as I have done in amendment 144.
Karl Turner: I rise to speak to amendment 142, which is in my name and those of my hon. Friend the Member for Hammersmith (Mr Slaughter) and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd)—I think that that is the correct pronunciation of his constituency, but I apologise to him if it is not.
The amendment would put clinical negligence back into the scope of legal aid. The Bill will exclude many important areas of law from the scope of legal aid entirely, all of which deeply concern me.
8.45 pm
In my remarks, however, I wish to address specifically the issue of removing clinical negligence from the scope of legal aid, which will restrict access to justice for the very vulnerable, many of whom, no doubt, will reside in my constituency. Victims of clinical negligence will suffer a double hit in the Bill: not only will they be unable to gain access to legal aid, but they will suffer the prospect of paying crippling legal fees from their hard-fought-for damages. The Government tell us, “That’s not a problem, because conditional fee arrangements offer a safety net to victims of criminal negligence.” I respectfully suggest that that is not the position.
If CFAs were being left with their integrity intact, as the previous Government had intended, I might have some sympathy with the Government’s argument. CFAs were, if I am right, introduced by the previous Government to ensure that people who did not qualify for legal aid had an opportunity to instruct solicitors on a no win, no fee basis. Solicitors often take on complex and risky cases, knowing that they can claim costs and a success fee from the losing party, but proposed changes will result in victims who win their case paying costly legal fees out of their damages. That cannot be right. Damages are not, as the Government would have us believe, some sort of lottery win. They are paid for damage done to the individual. It is about putting a person who has suffered a loss back into the position they were in before the injury occurred.
That point was summed up well by a criminal negligence lawyer in my constituency. Natalie Simkin is a solicitor for Williamsons solicitors, which is based in Hull city centre and deals with a great deal of these cases. She said:
“People do not choose to be injured and many suffer financial hardship because of their injuries… Is it really fair that they should lose some of their rightful compensation to spare the wrongdoer the full cost of putting things right?”
I agree with her remarks. In Committee, the Minister argued that some clinical cases would continue to receive legal aid funding through the exceptional funding scheme, but he did not bother to explain to the Committee the detail of that scheme. I wonder whether, when he comes to the Dispatch Box, he will explain fully the detail of that scheme. In my view, it will be extremely difficult.
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These cases seriously affect the most vulnerable people, including those who cannot afford to instruct solicitors and barristers. It is about the baby who suffers from the negligence of health service professionals, having been left for too long in the birth canal, as happened in a constituency case brought to me recently that has been going on for many, many years. It has involved protracted litigation, arguments to and fro between solicitors and advice from counsel, and it has been going on for about nine years. It involves unbelievably slow, complex and detailed law that people find difficult to comprehend. Some of those people would be left to paddle their own canoes as a result of the Bill. That cannot be right.
Another case from my constituency, of which I have some knowledge, involved a man who visited his GP’s surgery three times in three days complaining of severe stomach pain. He was prescribed Gaviscon for his intense stomach pain, but collapsed some days later and was rushed to Hull royal infirmary. Having spent some time in the high-dependency unit, he died, leaving three sons. With the help of a litigation friend, those boys were able to seek legal redress. After five years, the case was settled out of court, after much to-ing and fro-ing between solicitors. I know something about that case because it was the case of my own brother, who died as a result of his GP’s medical negligence.
Access to justice is the cornerstone of a modern democratic society, and legal aid provides it for the most vulnerable. It seems bonkers that the Government should accept that self-litigation is likely to result from this Bill—to be honest, I find it shocking. Indeed, in his submissions and contributions in Committee, the Minister offered self-litigation as some sort of remedy. It is unbelievable to say that people can deal with complex cases without the help of solicitors and lawyers. Encouraging self-litigation for clinical negligence cases is economically short-sighted as well. I firmly believe that it will clog up the system; indeed, I think the Judges Council in England and Wales has made that very point.
The Government have ignored all that. The Bar Council made representations to the Government in the consultation, but it, too, has been ignored. Indeed, looking across the Chamber, I see two silks on the Government Back Benches. I do not know this for sure, but I am pretty confident that both will have made representations to the Minister about how they, as experienced practitioners, believe the Bill’s legal aid provisions will affect the justice system, all of which he has ignored. Perhaps the Government ought to consider promoting those Back Benchers to the Front Bench, because I can assure the House that such experienced, eminent members of the Bar would be able to assist them.
I have further concerns about patient safety if clinical negligence cases are removed from the scope of legal aid. Removing the availability of redress must have an impact on patient safety. The vast majority of surgeons, doctors, nurses and dentists do a fantastic job most of the time; but of course, people make mistakes. It would not be right to prevent people from seeking redress when that occurs. I will not stray too far from the amendment, Mr Deputy Speaker, but we have a Government who in my view are effectively privatising the NHS. I served on the Committee considering the Health and Social Care Bill, every clause of which is to do with competition and, in my view, privatising the
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NHS. I firmly believe that more and more incidents of clinical negligence will occur as a result of this Government’s agenda.
Lord Jackson did not envisage a two-pronged attack on victims of clinical negligence when he made his recommendations. In this Bill, victims suffer the double whammy of taking legal aid out of scope for clinical negligence cases and making changes to conditional fee arrangements that leave victims footing the legal bills. The cost to the Government of funding clinical negligence cases out of a legal aid budget of £2.2 billion is £17 million—less than 1%. I find it shocking when I look at what the NHS Litigation Authority has said about this matter. It says that it favours keeping clinical negligence within the scope and it stated in response to the Government’s consultation:
“Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria”.
I am well aware that many right hon. and hon. Friends are desperate to speak to the group of amendments on social welfare, so I will finish my remarks there.
Stephen Phillips: May I say what an enormous pleasure it is to follow the hon. Member for Kingston upon Hull East (Karl Turner) and to commend at least some of his comments to my colleagues, particularly to those seeking the promotion of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox)? I make no comment about any other Queen’s counsel on this side of the House.
There is undoubtedly a fundamental problem with civil legal aid. The simple fact is that to bring cases for which legal aid is available to trial in this country costs more not only than it does in civil law systems that do not recognise the extensive discovery that we have here in England and Wales and in other jurisdictions of the United Kingdom, but more than it costs in other common law jurisdictions such as New Zealand and Australia and in other jurisdictions that have essentially inherited our legal system. That fundamental problem is one with which, because of the deficit we were left by the last Government, this Government have had to grapple. [Interruption.] I can see the hon. Member for Hammersmith (Mr Slaughter) mouthing something from a sedentary position. If he wants to intervene, I am happy to allow him.
Mr Slaughter: I felt that the hon. Gentleman was about to get into a long peroration that would be more suitable for a Second Reading debate. I was simply reminding him that the amendments we are debating are about clinical negligence.
Stephen Phillips: I am grateful, but I see Mr Deputy Speaker in the Chair this evening. I am sure that if I am out of order at any stage, he will upbraid me. I do not need any lessons from the hon. Member for Hammersmith about how to speak in this Chamber or indeed about the remarks I intend to make tonight. [Interruption.] The simple fact of the matter is—[Interruption.]
Mr Deputy Speaker (Mr Lindsay Hoyle): Order. I think Mr Slaughter needs to calm down.
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Stephen Phillips: I am extremely grateful, Mr Deputy Speaker. The simple fact is that these amendments, which seek to reverse the Government’s position that clinical negligence should be removed from the scope of the exceptions in the Bill, have to be considered against the background of the current position as it prevails in relation to civil legal aid. If that point has escaped the hon. Member for Hammersmith, it is not one that has escaped me or, indeed, my hon. Friends. I remind him that it was the manifesto commitment of his party that Labour would have reformed the civil legal aid system if they had formed the next Government.
In those circumstances, we come to the particular context of these amendments and of whether it is appropriate to remove clinical negligence from the scope of legal aid and leave the gap to be picked up in two ways. I am sure that the Minister will make it clear in his concluding remarks how that gap will be picked up. At this juncture, I should say incidentally to the hon. Member for Kingston upon Hull East that I have made no representations at all to the Minister about this Bill, although I was grateful for the hon. Gentleman’s earlier observations. The Government believe that that gap will be filled in two ways. First, the exceptional funding that the Bill makes available will pick up many clinical negligence cases that would otherwise have attracted legal aid funding from the Legal Aid Board. That may satisfy some, and it may deal with part of the problem.
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I realise that there are extremely strong feelings about the issue, not just among Opposition Members but on the Government Benches, but the cost of legal aid is an issue with which the Government must grapple. The hon. Member for Hammersmith made it clear on Second Reading that the Opposition would make cuts in a different area, but he did not tell us where they would be made. I might add that the same applies to every other policy that we hear about from Opposition Members, and to every other instance of opposition. The simple fact is that cuts must be made somewhere, and I believe that clinical negligence is one area in which it is appropriate to make them.
The other way in which the gap that will be left by the removal of legal aid can be filled and access to justice ensured for the vast majority of claimants who have sustained, or at least allege that they have sustained, clinical negligence and have suffered injury as a result, is through the conditional fee arrangement. That too was mentioned by the hon. Member for Kingston upon Hull East, who made the important and correct observation that the CFA system had been introduced by the last Government to pick up cases in which legal aid was not available. I must say, with the greatest respect to him—and I have enormous respect for him, as a fellow member of the Bar—that that observation undermines the entirety of his argument.
We can all, as the hon. Gentleman did, draw attention to emotive cases. None of us believes that those who sustain serious injury as a result of clinical negligence should not have an opportunity to seek redress from the courts as a result of these proposals or indeed any others. People have a basic right to seek access to justice. My judgment tells me, however, that the arrangements proposed by the Government have not just the two salutary features that I have identified, but
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a third benefit: they begin to deal with the spiralling costs of a legal aid system that has been out of control for far too long.
Why does civil justice cost so much in this country? We have a tradition of getting to the truth and, indeed, a desire to do so, and it costs money to get to the objective truth. Having never practised in clinical negligence, I was troubled and surprised to hear the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) refer to occasions on which the big beast of the national health service had effectively ensured an inequality of arms between it and those who alleged they had sustained clinical negligence by failing to produce the documents and other evidence for which the civil procedure rules undoubtedly call. Although he did not give examples, I do not for a moment doubt his bona fides, or that he was referring to cases of which he had heard. However, if that is the case, providing legal aid for all clinical negligence cases is not the answer. I believe that the answer, which is relevant to his amendments, is twofold.
The first way of dealing with that issue, to the extent to which it exists, is to ensure that the civil procedure rules in England and Wales, and whatever rules exist in Scotland and Northern Ireland, are amended to make it absolutely clear that early discovery or disclosure, call it what you will—oral and, if necessary, documentary—is afforded to claimants, so that they have access to the materials that they need to submit to their medical experts. If those rules are not currently in place, my right hon. and learned Friend the Lord Chancellor, who is no longer in his place, will need to consider with the Civil Procedure Rule Committee precisely what changes to the rules ought to be made to redress that inequality of arms. Ensuring the continued existence of civil legal aid in an area in which the Government have indicated they intend to remove it, albeit with exceptional measures remaining, is not the answer.
The second way in which the problem ought to be addressed is by the judiciary being much stronger with, and more critical of, public authorities when they seek to suppress information that is relevant to cases that come before the court or that is necessary to enable claimants to prepare their case properly. It must ensure that there is equality of arms and that people can best advance their case in the courts should matters need to proceed that far.
Mr Llwyd: The hon. and learned Gentleman makes very good points. I tried to say that there should be a twin-track approach. In my perception, there is a problem with regard to the administration of health authorities and full early disclosure, so he is absolutely right. However, I still say that there should be more than just a basic safety net in awful cases such as when somebody is a paraplegic upon birth.
Stephen Phillips:
I am grateful to the right hon. Gentleman for his observations, but he may be eliding two matters. The first is the unavailability of legal aid for what we might call cases in the middle—neither the severe cases that will be picked up by the exceptional funding arrangements or CFAs, nor the cases in which solicitors and counsel will be prepared to take the case on and earn their money well down the line. I agree that that middle group of cases is the difficult group, but as well as the CFA arrangements mentioned by the hon.
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Member for Kingston upon Hull East, one must consider whether those cases are likely to be picked up and run with by the legal profession. My judgment is that they are.
Never having done a clinical negligence case, and having no expertise in those cases at all, I base that judgment partly on my experience of the position as it prevails in many jurisdictions in the United States, where of course no state or federal funding at all is available for civil cases. A legal profession has grown up in which attorneys have had to educate themselves about which cases they should be prepared to take. They consider which cases are worth taking forward, but also those that they believe have merit from a perspective of social justice and ensuring that there is access to justice for all.
Having worked with many attorneys across many jurisdictions in the United States, I can tell the right hon. Member for Dwyfor Meirionnydd that there are attorneys who take cases that they suspect will lead either to a settlement, out of which they will get very little or nothing, or to an eventual loss if they have to take the matter to court. They consider that part of their professional obligation.
I hope that both limbs of the legal profession in this country will come to appreciate that we owe an obligation not merely to try to make money out of the practice of law, but to do what we all did when we first came to the law—have a burning sense of justice on behalf of our clients, so that they are properly represented whether or not we believe them, whether or not we think their case is meritorious and certainly whether or not we think we will make money out of it. I hope that that deals to a large extent with the right hon. Gentleman’s points. I am, of course, as concerned as he is that there may be a group of cases in the middle that will somehow fall through the net. If that is the position, we may have to revisit the issue later.
Mr Deputy Speaker (Mr Lindsay Hoyle): I call Sir Alan Beith.
Stephen Phillips: With the leave of the House, I was about to make my final few remarks.
Sir Alan Beith: I apologise to my hon. and learned Friend; I thought he had concluded his speech.
Stephen Phillips: The amendment proposed by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) addresses schedule 1 and the non-exclusion of clinical negligence cases in the context of convention rights. As I have informed the House more often than, perhaps, I ought, I have never conducted a clinical negligence case. [Interruption.] Mr Deputy Speaker tells me that the House has taken that point on board, and I am pleased it has taken at least one of my points on board.
Notwithstanding the Government’s insistence on the exclusion of clinical negligence in this context, I find it difficult to envisage any circumstances in which a case could be brought under the convention that engages this part of the law. I am not sure that my right hon. Friend addressed that point adequately—or, indeed, at
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all—when I intervened on him earlier, but he has said that this is a probing amendment that may have to be debated further in another place. At present however, I remain perplexed by the amendment.
Tom Brake: My hon. and learned Friend highlighted a flaw in the drafting of the amendment, but in his contribution this evening he has identified the group of cases that gives me some concern: the group of middle cases, as he described them. He has, I think, suggested both that he also has concerns in this regard and that the Government may need to address the matter in future.
Stephen Phillips: It may be an area the Government have to come back to. The amendment would change schedule 1 and, specifically, the cases for which civil aid is, and is not, available in the context of breaches of convention rights by a public authority. It addresses the convention rights contained in the Human Rights Act 1998, a piece of legislation of which the House will know I am not greatly enamoured. Clinical negligence is itself defined in paragraph 20(6) of the schedule, and the amendment suggests that civil legal aid should continue to be available in cases where a breach of convention rights is asserted in the context of clinical negligence. Although I think the Human Rights Act is bad law, I find it difficult to envisage circumstances in which the convention might be used and legal aid ought, in any event, to be available.
I therefore do not support the amendments, as they are unnecessary and misconceived, and the Government will have my support tonight.
Sir Alan Beith: I apologise to my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for having misinterpreted—and for perhaps leading you, Mr Deputy Speaker, to misinterpret —his meaningful pause, which sometimes occurs when senior counsel are delivering their well-chosen words, and which led me to think he had finished his speech.
I commend the members of my Committee who have brought this issue to the attention of the House: the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Kingston upon Hull East (Karl Turner). The current system reveals many shortcomings in dealing with matters of this kind. I can recall a case, which went on for many years, of a young man who was brain damaged for life because he was not provided with proper recovery following an operation after a road accident. It was only when I managed to drag some information out of a health authority that the third firm of solicitors involved sued the second firm of solicitors for its professional negligence in allowing the matter to run out of time when a claim against the health authority would have been successful had it been undertaken with that information in the first place. These very difficult matters frequently involve the kind of cases that most of us are concerned about tonight: lifetime injury cases with very high care costs for those involved. My understanding is that when it comes to recovering costs from people who have been awarded damages in these circumstances, they will be recovered not from their damages for care, but from the other
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aspect of damages; a provision that the court has made for someone’s lifelong welfare ought not to be affected.
9.15 pm
That brings me to the issue raised by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips): there may be a group of cases that are not satisfactorily embraced by the Government’s exceptional provisions, which it is estimated will cost £6 million of the £16 million currently spent and which I hope will pick up some of most serious cases, but that will be dealt with by the conditional fee arrangement system. That has to be viewed against the background of the Jackson proposals, and I hope that the Minister will say something about the concern that after-the-event insurance may be too costly when it is needed to gain expert reports. Another concern is that there may not even be an effective market in this type of insurance for such a limited range of cases and therefore one aspect of what is left for that middle group of cases may not prove to be available in practice.
The group of people I am most concerned about are those whose injuries will last a lifetime. The right hon. Member for Dwyfor Meirionnydd mentioned birth injuries, and I am particularly concerned about parents who need to ensure that care is provided beyond their lifetimes to their children. Many of us have dealt with elderly parents who have had worries of this kind for children with brain injuries. Members of this House and those in the other place need to be assured that this combination of measures—the willingness of solicitors and counsel to undertake cases as an appreciation of their significance and the public good, the availability of the Government’s exceptional provisions for some types of serious case and what remains of the CFA system—will between them cater for some of these very serious cases. This House and the other place will need to be given some assurance; otherwise, I strongly suspect that when the Bill comes back to us it will have been significantly amended.
Guy Opperman (Hexham) (Con): I think I am unique in this House in that I have had a great deal of experience in clinical negligence and have practised for the best part of 12 years almost exclusively on behalf of claimants. I have conducted well over 100 clinical negligence cases, against a multitude of general practitioners, hospital trusts and the like. They were primarily insurance-backed or conditional fee arrangement cases, although some of them were occasionally legal aid cases. I believe that, in the great tradition of the Government, I have still been unpaid for some of that work, notwithstanding the fact that I have not completed any work as a lawyer since I was elected in May 2010. So I should declare an interest in that I believe I have some legal aid fees outstanding, not that I am pressuring the Minister in any way to beat a path to my clerks and my chambers to pay the bill.
I should also declare an interest as a former lecturer and a member of Action against Medical Accidents—AvMA. I have written extensively on this area and am a member of the Association of Personal Injury Lawyers. I have given instructions to a multitude of different hospitals up and down the country, assisting them on how they can avoid clinical negligence claims. I was retained as counsel for several hospital and trust institutions, advising on how to avoid these claims and how to move
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forward. I should also declare an interest in that I am part of the team pushing for a culture of openness and have met the hon. Member who so very helpfully saved my life in May, my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter). So I have also conducted an in-depth study of the NHS over the past six months in a way that I did not expect when I was first elected.
My final declaration is that I have great respect for the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who occupies part of a seat that I fought in 2005 of the Lleyn valley and peninsula in what was Caernarfon. I know that he is an outstanding MP and barrister and I have great respect for the points that he makes, as I do for the submissions and proposals of the right hon. Member for Carshalton and Wallington (Tom Brake) and the hon. Member for Kingston upon Hull East (Karl Turner).
Let me address the proposals of the right hon. Member for Dwyfor Meirionnydd regarding the duty to come clean. It must surely be the case that NHS authorities should come clean at an early stage and I endorse some of the comments that were made about this being something to be addressed not so much in the Bill as in the NHS’s culture and approach. I regret to say that I disagree with my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) about this, and I have a copy of an article that I wrote for an Association of Personal Injury Lawyers publication on this exact point. In my experience there is ample evidence of isolated examples of an NHS trust deliberately defending a claim on an ongoing basis in the hope that the relevant individual goes away. That is a serious allegation to make, but it is not just me who says it—cases have been reported. I recommend very highly the amazingly well-written edition of APIL PI Focus, volume 20, issue 3, which I co-authored, which addresses that particular point.
Stephen Phillips: I make it clear for the fourth time that I have no experience in this area, and I have no doubt that such cases exist, but are they not exactly the sort of case that the civil procedure rules were introduced to deal with? Judges have powers to ensure equality of arms and if defendants behave badly they ought to be punished accordingly.
Guy Opperman:
I totally endorse that point and such defendants are punished accordingly, particularly in the punitive elements of costs when they are assessed. There are punitive factors that my hon. and learned Friend as a judge would know one is able to impose in a civil court whereby—[
Interruption.
] I accept that he is not a civil judge—it shows. There is an ability to punish the offending NHS institution or doctor, but the fair point that has been raised and must be addressed is that the powers that would exist to a civil judge, were my hon. and learned Friend to be one, would arise quite far down the track in civil litigation and not at the outset. I come back to the legitimate and fair point that we should address this issue to NHS trusts and particularly to two types of individual, including, first, to chief executives. Regrettably, there are examples of a failure of leadership by chief executives because, clearly, they are mindful of their budgets and they do not like the
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idea of a culture of openness in which mistakes are admitted. In those circumstances, whether implicitly or directly, efforts are made to suppress litigation against NHS trusts.
The second group of individuals who should be involved is doctors and consultants. Because theirs is such a hierarchical profession, instead of having a culture of openness in which mistakes are readily admitted, there is, sadly, from time to time—I have professional experience of this—a failure to admit mistakes. As the hon. Member for Kingston upon Hull East will sadly and tragically have discovered—and I have been involved in several such meetings—there is a post-operative debrief within the health service.
Neil Carmichael (Stroud) (Con): This is not really my field, but I know from my constituents that a large number of them who have experienced difficulties in the NHS are extraordinarily concerned about the lack of transparency and the weight of expertise against them, because they are not, of course, particularly skilled in that area. Does my hon. Friend agree that that is one of the big problems we need to address, as I hope we are doing in the Bill?
Guy Opperman: I am grateful to my hon. Friend for his intervention, but I will not deal with it in any great detail—I mean no disrespect to him—because I wish to go back to the point I was making. We must have a system within the medical profession that allows its members to start to accept that it is perfectly understandable that mistakes are made, because they are human beings, and that there is insurance to cover such matters when they take place. With the best will in the world, that should be accepted. That recognition, however, does not exist to the degree that it should.
Richard Harrington (Watford) (Con): Does my hon. Friend think that that phenomenon is unique to the medical profession? Does it apply to many other professions, including his former profession, the legal profession, where mistakes are not openly broadcast and are dealt with internally, often unofficially, rather than publicly?
Guy Opperman: I did not expect to be attacked by my own side for my former profession. I agree that we all need to accept that when we make mistakes we should own up to them, and that goes for politicians, too.