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Wednesday, 18 January 2012.
3 pm
Prayers-read by the Lord Bishop of Chichester.
Phone Hacking
Question
3.06 pm
To ask Her Majesty's Government what is the latest police estimate of the number of individuals whose phones have been hacked by newspapers, and how many arrests have been made.
The Minister of State, Home Office (Lord Henley): My Lords, the latest estimates by the Metropolitan Police Service indicate that there may be about 800 likely victims of phone hacking. There have been 17 arrests as a result of the continuing police investigation.
Lord Fowler: My Lords, we obviously do not know how many people will be charged, but we do now have a very good picture of how widespread phone hacking was. Is it not clear that the phone hackers and those who employed them believed that their power put them above the law? Given that, is not one of the lessons of this whole scandal that we should never again allow one proprietor or one company to own a disproportionate amount of the British media?
Lord Henley: My Lords, I am not going to comment on the last point made by my noble friend, but no doubt the House and others will have listened to that. The police have spoken to about 1,800 people, of whom, as I said, 800 are likely victims. Whether charges will result from those 17 arrests is something on which I cannot comment.
Lord Prescott: My Lords, is the Minister aware that the appalling level of these arrests and prosecutions reflects badly on the British press and was made possible only by the use of no-win no-cost litigation by those who were complainants, including me. Why are this Government in their legislation on legal aid quite prepared to meet the unanimous demands of the press that we reduce their costs in such situations and yet increase the costs of individual complainants and reduce their access to no-win no-cost litigation? Can he assure the House that those he has mentioned as having been arrested, including the Prime Minister's former adviser, Mr Coulson, played no part in changing the policy of the previous Government, who rejected the request from the media?
Lord Henley: My Lords, I can agree with the noble Lord that this has not been the finest moment for the British press. His remarks about no win no fee go
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Lord Tebbit: My Lords, would it not be in the public interest for the press to publish, however they gained knowledge of it, activities by a Minister, in his working time and in his office, which were quite clearly contrary to all standards of decency and the Government's own code of conduct for Ministers?
Lord Henley: My Lords, what the press publish is a matter for the press and not for us, but I note what my noble friend has to say about the activities of some people in the past. I repeat that we feel that we should wait until the inquiry being conducted by Lord Justice Leveson has been concluded.
Baroness Bonham-Carter of Yarnbury: Does the Minister agree with the editor of Private Eye, who said at the Leveson inquiry yesterday that we do not need new laws to govern the press, that phone hacking, paying the police for evidence and being in contempt of court contravene existing laws, and that we need proper and vigorous enforcement of them?
Lord Henley: My noble friend makes a very good point. All the matters she referred to are against the law, and we should always be very loath to pass new laws purely because we see a problem happening when there are existing laws that serve that purpose very well. The important matter is to make sure there is proper enforcement.
Lord Davies of Oldham: My Lords, why was the Minister so reluctant to comment on that part of the question asked by his noble friend Lord Fowler about concentration of press ownership? I thought the Minister belonged to a Government who were showing some concern about the wilder excesses of capitalism. Is not excessive concentration of press ownership a clear illustration of that?
Lord Henley: My Lords, I think some of the concentration of press ownership happened during the Government of whom the noble Lord was such a distinguished member in former years. I do not think it would be appropriate, as I said, to comment in advance of the inquiry that will be concluded in due course, in his time, by Lord Justice Leveson.
Lord Elystan-Morgan: My Lords, can the Minister tell the House, in general terms, whether systems of state security dedicated to the surveillance of communications worldwide can cast any light at all on the question of phone hacking? If that is the case, subject to proper safeguards, can such information can be relayed to the Leveson inquiry?
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Lord Henley: My Lords, I am not sure I can assist the noble Lord on that latter point. I can say that my understanding is that it is relatively easy to hack into texts and voicemails on individuals' mobiles but very difficult to get into live calls on a mobile, which is something that only possibly the security services and others would be able to do. These things are possible but are much harder. In the main, we are talking about hacking into texts and voicemails.
Lord Brooke of Alverthorpe: Perhaps the noble Lord can help me in my ignorance. Can he say whether the Leveson inquiry's terms of remit cover the subject that was raised by the noble Lord, Lord Fowler, about the concentration of media ownership? If not, can he say what the Government will do about it?
Lord Henley: My Lords, the terms of reference for Lord Justice Leveson were set very wide indeed and it will be for Lord Justice Leveson to produce his report in due course. The timing of that report is obviously a matter for Lord Justice Leveson.
Lord Inglewood: Does my noble friend the Minister know whether the inquiries that the police made before the arrests that he described in response to my noble friend Lord Fowler's Question have been completed? If not, is there an anticipated timetable for completion?
Lord Henley: Operation Weeting, which is one of the police investigations into the matter, is ongoing. As I made clear, there have been 17 arrests so far. There might be more in due course.
Lord Hamilton of Epsom: Is my noble friend not concerned that the source of these telephone numbers in the beginning may have been the police themselves, who sold the numbers to the press?
Lord Henley: My Lords, that obviously is a concern and is one of the matters that was considered in the report from Dame Elizabeth Filkin, which was published on 4 January this year. We expect the police service as a whole to study the recommendations of that report, and various other reports including that from HMIC, and draw the appropriate conclusions.
The Lord Bishop of Chichester: My Lords, I appreciate that the question about the implications of the present Bill on legal aid was not in the original Question asked by the noble Lord, Lord Fowler, but it seems a reasonable extension of it. Although I would not want to politicise the thing in the way that the noble Lord, Lord Prescott, did, it does seem there is a question about disproportionate power. It is not so much about the concentration of the power of capitalism as the concentration of power against the relative powerlessness of the individual. That does seem to be a legitimate extension of this and I would be grateful if the Minister could reflect on that.
Lord Henley: My Lords, I did not think that the noble Lord, Lord Prescott, politicised this question unnecessarily and, similarly, I do not think that the right reverend Prelate has politicised it. However, I do think that does go beyond the Question on the Order Paper.
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Shipping: Tax Revenue
Question
3.14 pm
To ask Her Majesty's Government why, when they are able to provide estimated tax liabilities due to tonnage tax on British shipping, they are not able to supply figures for revenue received.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, estimated tonnage tax liabilities were provided using database information from Her Majesty's Revenue and Customs. This general approach is regularly used when answering questions on tax.
To construct reliable estimates of tax received would require HMRC checking each tax return, linking it with associated payments and estimating how much tax received related to tonnage tax. This exercise would be extremely time-consuming. However, revenues received will be broadly similar to those figures already given.
Lord Prescott: The Minister is aware that this is a successful tax. It increased the British fleet from 4 million tonnes to 18 million tonnes and that is an important factor. But I cannot accept his reply that he knows what the liability is and knows what the profits are but we cannot afford to find out what the tax liability and payments are because that would cost more, as he said in a letter to me, than a parliamentary reply. That is unacceptable. We are entitled to know.
However, I am more concerned about this tax.
Lord Prescott: I am concerned about the recent transfer of the Cunard steamship company, which enjoys this fiscal arrangement, to Bermuda. It has retained the tax but been removed from the statutory requirement to have a captain or crew of a certain kind on its ships. That is unacceptable.
Lord Prescott: The loss of the "Concordia" reminds us of the importance of having a captain and safe crew. The "Concordia" is owned by the American company that owns these ships. There are two standards on cruise liners, which is totally unacceptable.
Lord Sassoon: My Lords, I am not sure how I interpret that question, but I think the relevant bit relates to the original Question, which is to do with the numbers that I gave the noble Lord, Lord Prescott, in my Written Answer. I can assure him that it is standard practice to give numbers based on the liability in respect of years. That is done in innumerable Answers to Questions. The numbers in this case, as is normally the case, will be broadly reflective and close to the actual tax paid. It is simply that the tax paid gets paid at different times according to the individual circumstances of the company.
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I am happy to recognise that the noble Lord, Lord Prescott, was Secretary of State for Transport and many other important things at the time that this important tax was introduced. Just to correct his figures, the gross tonnage of British shipping in 2000 was 5.8 million tonnes and, indeed, it has increased to 18.2 million tonnes since then.
Baroness Kramer: My Lords, perhaps I can help. One of the motivations for providing the option of a tonnage tax was significantly to enhance the training and safety of the shipping fleet. Has the tax achieved that purpose and are any records kept and tracking done on those issues?
Lord Sassoon: My Lords, the tax has achieved an estimated reduction of £45 million of tax which the shipping industry in this country would otherwise pay under conventional corporation tax. It means that we have a more vibrant and healthy shipping industry in this country. Of course there are many other associated issues that my colleagues in government keep under review and discuss with the industry.
Lord Davies of Oldham: My Lords, is the Minister not concerned that the obfuscation involved in his replies to my noble friend Lord Prescott's questions merely reinforces our anxiety, which has also been expressed by the Public Accounts Committee of the other place, that the Government may be guilty of treating large companies somewhat more favourably than ordinary taxpayers, and that this may be another instance of cover for a somewhat cosy deal?
Lord Sassoon: My Lords, I am surprised that there are any suggestions of some cosy deal. After all, this was a tax introduced by the noble Lord's Government. He now says that he might have done a cosy deal. It has put British shipping ownership on a level playing field with other countries in Europe; it involves state aid, and the EU at some stage will review it. If anything, the complaint that we get is that other countries take unfair advantage of the EU dispensations.
As to what the other House has to say, I am sure that noble Lords will not need reminding that it was as recently as 1628 that this House stood up to another place on the question of tonnage and poundage and got us into frightful trouble, not least with the attempted impeachment of the Duke of Buckingham, who put forward the proposal. So I am certainly not going to cross swords with another place on this topic.
Lord Trimble: I listened with interest to the Minister's reply to the noble Baroness, Lady Kramer. He said that the tax, by reducing the amount payable so far below what would be payable in corporation tax, led to a huge increase in tonnage. Does that not indicate that there ought to be a similar movement in corporation tax generally and that it would be hugely successful?
Lord Sassoon: My Lords, what it indicates is that tax competition and not having tax dictated on some uniform basis from Brussels is something that we will defend to make sure that where appropriate we can take advantage of that. We will have the lowest corporation tax regimes in the G7 and then one of the lowest in the G20. That will make our industry highly competitive on tax.
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Lord West of Spithead: My Lords, I declare an interest as chairman of the Merchant Navy Association. I am sure that the Minister will agree that from our maritime colleges in this country we produce some of the best qualified deck officers and engineer officers who operate in ships around the world. Does he agree that we should give more support to cadets going through these schemes? I think that there is a requirement around the world for more of these people, and we could actually provide more assistance in the way of apprenticeships to enable that to happen.
Lord Sassoon: My Lords, I am certainly happy to agree with the opening premise of the noble Lord's question, and he makes an interesting suggestion, which I will take away and refer to my colleagues.
NHS: Transition Risk Register
Question
3.22 pm
To ask Her Majesty's Government whether their risk assessment of their proposed National Health Service reforms will be published before the Report stage of the Health and Social Care Bill commences.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the Government are appealing the Information Commissioner's decision that the transition and strategic risk registers should be released, for the reasons explained in my recent statements to the House. The tribunal has initially fixed the oral hearing for 2 and 3 April, but my department is urgently discussing with the tribunal how the case may be expedited further. Regrettably, however, it is not possible for this to take place before Report commences.
Baroness Pitkeathley: My Lords, the Minister's reply will be disappointing to many Members of this House, who believe with the Information Commissioner that,
- "there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service the government's policies on the modernisation will bring".
Moreover, the noble Earl himself is, I know, on record as saying that he is anxious to get the matter decided as speedily as possible. Are the Government considering a delay in the timing of Report, so that the House can have before it all the information that it needs to ensure that this important Bill is subject to detailed scrutiny, which is such a significant function of your Lordships' House?
Earl Howe: My Lords, I understand the noble Baroness's disappointment. As I have said, my department has made strenuous representations to ensure that this process is concluded as speedily as may be possible, consistent with the need for both parties to assemble the necessary evidence and present their cases properly. In answer to her second question, of course we have considered the timetable for Report in the context of this process, but we have concluded that if the Bill is to go through its full passage by the anticipated time of the end of the Session we need to start Report at the beginning of February. So, regrettably, our conclusion is that the start of Report cannot be delayed.
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Baroness Meacher: I understand the Government's reluctance to publish risk registers. Governments do not tend to be keen to publish documents that are going to be deeply embarrassing to them. However, will the Minister invite the Information Commissioner to identify key sections of the risk registers that really should be before the House of Lords before it undertakes its work on Report, and will the Government and the Minister comply with the Information Commissioner's recommendations?
Earl Howe: My Lords, this issue turns on a disagreement between ourselves and the Information Commissioner about where the balance of public interest lies. Our view is that the balance of public interest does not lie in disclosure, and his view is the opposite. It would be likely, if we gave the Information Commissioner a second opportunity to look at this, that he would come to the same conclusion as before, so we have to let due process occur.
Baroness Thornton: My Lords, the strategic health body in London was perfectly content to make the register of risks on the health Bill available, so the House needs to know, first, what the difference is-except in terms of size-in the national Department of Health making its risk register available. Secondly, I realise that in appealing the Information Commissioner's decision the Government have said, in effect, that this decision has cross-government implications. Does the Minister accept that it also has wider implications for Parliament? In this House, our ability to scrutinise legislation effectively must be in doubt if any Government withhold important information from us, so what course of action does the Minister suggest that noble Lords in this House should take under these circumstances?
Earl Howe: My Lords, to answer the second part of the question first, a substantial number of the risks pertaining to the Bill are already in the public domain and we are considering whether there is scope to draw these sources of information together in a single place, so that noble Lords can look at them more easily. To answer the first part of the noble Baroness's question, I made inquiries about NHS London. Its situation is very interesting and quite different from that of the Department of Health. NHS London developed its risk management strategy with a view to it being visible to stakeholders and the public, as its document says. It is therefore a reasonable assumption that officials will have worded their risks for inclusion in the register in the knowledge that that wording would be likely to form part of a document placed in the public domain, so there is a very real difference between the two situations.
Baroness Jolly: My Lords, as has been suggested, there are wider issues here. Could my noble friend the Minister tell the House to what extent he believes the use of risk registers might be compromised if their authors feel they cannot be entirely candid?
Earl Howe: My Lords, risk needs to be thought about and assessed thoroughly and often in worst case terms in order to inform policy development and implementation. Risk registers are therefore a basic policy management tool and, for robust risk management
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Lord Wills: My Lords, apart from the specifics of this case, there is clearly an issue of constitutional significance when this House is being asked to scrutinise legislation without having available to it all the centrally relevant information. That is clearly the case here. Which committee of which House would the Minister recommend looks at this particular constitutional issue?
Earl Howe: My Lords, with respect to the noble Lord, I do not think that is a matter for me. Obviously, if there is a committee that feels able and willing to look at this matter, we shall of course co-operate and comply with that committee to the fullest extent.
Lord Owen: My Lords, there is a Motion on this very subject before the House in my name, and I hope that there will be an opportunity well before we reach Report for it to be debated. Since public companies are under strict obligations to publish their risk assessments-they have to weigh very carefully what they say because they could be sued by shareholders in their companies-why is it so different for Her Majesty's Government in the circumstances in which the Information Commissioner has expressed the view that this is a legitimate case that ought to be made available?
Earl Howe: The Freedom of Information Act was framed specifically in a way that would protect the process of policy-making within departments. Our view is that the risk register forms an integral part of policy-making and implementation; the Information Commissioner came to a different view. It is about the balance of public interest here: we wish to see this process adjudicated further.
UK: Union
Question
3.30 pm
Asked By Baroness Symons of Vernham Dean
To ask Her Majesty's Government what measures they propose to take to consult the whole of the United Kingdom about the future of the Union.
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, following the outcome of the 2011 Scottish Parliament elections, the Government accept that there is a case for holding a referendum in Scotland. If there is to be a referendum, we believe that it should be legal, fair and decisive. Therefore, we are consulting on the best way to achieve this. I can reassure the noble Baroness that the Government look forward to receiving views from across the United Kingdom during the consultation process.
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Baroness Symons of Vernham Dean: My Lords, does the Minister agree that the break-up of the United Kingdom will affect us all throughout the UK? If so, will we all have an equal right to make our views known, and why not through a referendum? We have had an equal right to express our views on AV; we are told that we will have an equal right if competences move from this country to the EU, so why is there not an equal right throughout this country to vote on the most important constitutional issue to face any of us in our lifetime?
Lord Wallace of Tankerness: My Lords, I am sure that most, if not all, of your Lordships would find it very grievous indeed if the United Kingdom were to break up. Nevertheless, in the 11 referendums that have taken place since 1973, only two were held nationwide. Indeed, previous referendums have been held in only one nation of the United Kingdom-in London and in the north-east of England. We believe that whether or not Scotland should leave the United Kingdom and become a separate independent state is a matter for the people of Scotland. It would not be good for relationships within the United Kingdom if it were felt that some parts of the UK had been prevented from doing so by others. Our sincere belief, which I am sure we share, is that that will not happen-that those of us who believe that the values which we share across these islands are to be upheld will win a comprehensive victory, and that Scotland has contributed to the United Kingdom in the same way as the United Kingdom has contributed to the good of Scotland.
Lord Forsyth of Drumlean: Does my noble and learned friend not agree that if the separatists in Scotland wish to leave the United Kingdom, that is a matter that needs to be settled in Scotland? If, on the other hand, the so-called devo-max option is being considered, whereby matters other than foreign affairs and defence are considered in Scotland, that is a matter for the United Kingdom as a whole. It would effectively create an English Parliament and a federal Parliament, and that would have to be settled by a UK-wide referendum.
Lord Wallace of Tankerness: I agree with my noble friend that if the separatists were to have their way and Scotland were to vote to leave the United Kingdom, that should be determined by the people of Scotland. I also agree with him that the so-called devo-max proposal, as far as one can understand what it is-in our exchanges last week, noble Lords suggested that it was a product without a brand or a brand without a product; I cannot remember which way round it was-has implications for other parts of the UK, and we are certainly well seized of that fact.
Lord Martin of Springburn: My Lords, as a Scot, I do not want separation. I feel strongly that there should be only one question in the referendum, and one question alone. I ask the Minister to give some advice to the Prime Minister: the best thing that he can do would be to stop appearing arrogant in his interventions. It does not help those of us who want to retain the United Kingdom.
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Lord Wallace of Tankerness: My Lords, one of the issues in the consultation to which I referred is the number of questions in a referendum, although the United Kingdom Government have made it clear that our preference would be for a single question on whether Scotland should remain part of the United Kingdom. To do otherwise and to import questions such as devo-max would only muddy the waters and lead to a very indecisive outcome. We want a referendum that is not only legal and fair but decisive as well.
Baroness Royall of Blaisdon: The Government this week announced the establishment of the new Commission on the Consequences of Devolution for the House of Commons. There are some excellent members on it, but why was there no consultation on the membership with the Official Opposition? Who will be looking at the consequences of devolution for the House of Lords?
Lord Wallace of Tankerness: My Lords, the noble Baroness is right to draw attention to the fact that, as was announced yesterday, there will be a Commission on the Consequences of Devolution for the House of Commons. It is important to point out that the panel, which will be chaired by Sir William McKay, a former Clerk of the House, comprises six independent, non-partisan experts. There is no question over party balance in this. With regard to the consequences for the House of Lords, I am conscious that, although a Scot, I am a Peer of the United Kingdom.
Lord Maclennan of Rogart: Would the Government support a broad-based British organised public discussion of the United Kingdom, in the manner of the Scottish convention, to help inform the debate that should lead to the decision on whether to dismember the United Kingdom? Is it not critically important that people's opinions are sought not just in a snap decision but having had an extensive discussion in which they can all be involved?
Lord Wallace of Tankerness: My Lords, I do not think that there is any chance of it being a snap decision. I am very conscious that, in your Lordships' House, many Lordships bring to bear from their respective experience examples of where Scotland has made a contribution as part of the United Kingdom to the common good of Scotland and of where Scotland has in turn made a valuable contribution to the United Kingdom. In the debates that take place on this I hope that people will be prepared to speak out and show that our shared values are of great importance, and that it would be a backward step to break up our United Kingdom.
Commission for Architecture and the Built Environment (Dissolution) Order 2012
Motion to Approve
3.36 pm
That the draft order laid before the House on 29 November 2011 be approved.
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Relevant document: 36th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 16 January.
Legal Aid, Sentencing and Punishment of Offenders Bill
Legal Aid, Sentencing and Punishment of Offenders Bill
Committee (4th Day)
Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights, 21st and 22nd Reports from the Delegated Powers Committee.
3.37 pm
Schedule 1 : Civil legal services
36: Schedule 1, page 116, line 4, at end insert "and under section 140 of the Learning and Skills Act 2000 (assessments relating to learning difficulties)"
Lord Clement-Jones: My Lords, from the outset I should stress that this amendment is strongly supported by the Special Educational Consortium of special needs disability charities. The consortium and I believe that access to a suitable and challenging education is a right for all children, and that parents need to be able to enforce a legal obligation when they are let down by the system. When parents do not have the financial resources to bring an appeal on their own, they should be supported to do so in the interests of justice.
The Government initially consulted on removing legal aid for all appeals against local authority decisions on the provision for children with special educational needs. I welcome the Government's subsequent decision to retain special educational needs appeals for children of school age within the scope of legal aid. The Government clearly recognise the importance of these children's entitlement to an appropriate and challenging education. Nevertheless, the Bill as currently drafted will mean that young people with special educational needs who are aged between 16 and 25 will no longer be eligible for legal aid.
The purpose of the amendment is to ensure that young people aged between 16 and 25 with special educational needs continue to be eligible for legal aid when appealing against decisions made about special educational provision. Removing access to legal aid for young people aged 16 to 25 with special educational needs, as the Bill currently does, is inconsistent with the Government's position on the importance of the rights of young people with SEN and, in particular, with the aims of the SEN and disability Green Paper, Support and Aspiration, of March last year. I very much welcomed the Green Paper, which sought to develop a streamlined system for children from birth
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For young people with SEN and their families, the transition to adulthood can be a particularly difficult time as support from children's services falls away and is often not replaced by support from adult services. As the Green Paper recognises, many young people who are disabled or who have SEN can face additional challenges during their teenage years. It states:
"Too often the opportunities and support available to disabled young people and young people with SEN fall short of what they need to make a successful transition to adult life".
Those words come directly from the Green Paper.
I welcome the Government's plans to extend support for young people with SEN up to the age of 25 through the proposed education, health and care plans in order to improve the support that young people receive during this difficult transition period. Cutting legal aid for this age group is inconsistent with the rest of government policy in this area. Therefore, I urge Ministers to accept this amendment to ensure that all young people with SEN remain, up to the age of 25, within the scope of legal aid. I beg to move.
Lord Howarth of Newport: My Lords, special educational needs is a particularly tortuous and difficult area of administration and, equally, for negotiation and representation. Young people with special educational needs are almost by definition ill equipped to represent themselves and to handle these difficult challenges on their own behalf. The system, at least in so far as children with special educational needs are concerned, provides very fully developed support, but there is something of a cliff edge beyond the period during which children are eligible for statements. While, admirably, the Government are seeking to improve the structure and quality of provision for special educational needs later on, it seems particularly unfortunate if, in this important area, they are to take away help for the very people they are otherwise seeking to improve their support for. Therefore, I hope that the Minister will find it possible to look sympathetically on the amendment in the name of the noble Lord, Lord Thomas, which was so well moved by the noble Lord, Lord Clement-Jones.
Baroness Browning: My Lords, I, too, support this amendment. My noble friend has exchanged correspondence with me on this matter. I support the points that have been made on the necessity to take into account the ability to obtain legal aid up to the age of 25, particularly for children with special needs. As my noble friend will be aware, the Young People's Learning Agency, which took over from the Learning and Skills Council, has an obligation to meet the special needs of those who have not attained 25 years of age. Although the agency is being phased out, a general educational obligation will remain unless this Bill closes that gap. As my noble friend knows, if this
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Lord Stevenson of Balmacara: My Lords, I rise to support Amendment 36 and to speak to Amendment 82ZA. The proposals arising from Amendment 36 are useful and we support them. In doing so, I declare an interest as a governor of a BESD school. Given my experience there, I echo the points made by the noble Lord, Lord Clement-Jones, about the need to support young people and their parents as they make the transition to adult life.
Our Amendment 82ZA is concerned primarily with the decision of the Government to remove all areas of education law from the scope of legal aid, with the exception of SEN provision, which we welcome but regret that it does not go far enough.
The Ministry of Justice consultation paper says that education cases cannot be accorded the same level of importance as those concerning an,
or protection against homelessness. Yet education is a basic human right and is one of the key children's rights in the UN Convention on the Rights of the Child. We now know beyond doubt that without access to an appropriate education, children from poor backgrounds or with SEN are more likely than their peers to end up in the youth justice system and be significantly greater social and financial burdens to the state for the rest of their lives. It is therefore a false economy to cut proper assistance and representation across this sector.
3.45 pm
The present spend from the legal aid budget on education cases is about £4 million per annum, and the estimated savings for their excision from scope are probably less than £1 million per annum. According to Legal Services Commission statistics, at least 92 per cent of education cases are successful, so there is obviously a real need here as well as high value for money.
As to the detailed points, we wish legal representation for SEN cases to be available for First-tier Tribunals and to ensure that specialist witnesses can be called at such hearings as well as just provide reports. In addition, our amendment would return into scope exclusions, admissions and bullying. Excluded children are at considerably greater risk than their peers of falling into the youth justice system. We should do what we can to ensure that such exclusions are necessary and appropriate sanctions. The Government appear to argue that school exclusions fall into a category of personal choice and that the child has always behaved in the manner alleged by the school or local authority. Surely every child has the right to be heard on such matters.
Removing access to legal aid for school admissions will have a disproportionate impact on particular groups of children, including refugee and asylum-seeking children.
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Bullying is common in many schools across England. Research undertaken by Bullying UK in 2006, for instance, found that out of a sample of more than 2,000 parents, 87 per cent reported that their child had been bullied in the past 12 months, and 77 per cent reported that their child had been bullied more than five times. It is important that children and parents or carers have access to legal services at an early stage on legal avenues of redress for bullying. Bullying can cause many children to miss school for significant periods or to withdraw from attending school completely, and can lead to other negative social and health outcomes throughout a child's life.
In her response to the Ministry of Justice consultation on the reform of legal aid, the Children's Commissioner argues that many education clients achieve what they do for their children only with the help of legal aid. Whether it be support and therapies for their child's special educational needs, admission to a particular school, transport to and from school, or winning a battle for reinstated education after a period without it, legal aid-funded advice has often made a huge difference to their children's life chances.
The Children's Commissioner goes on to say:
"The net result of these proposals would, in our view, remove the rights of access to justice by vulnerable and marginalised members of our society where no other alternative source of funding or route to resolution can be secured, and in circumstances where litigants' ability to represent their own case has not properly been considered".
She concludes with a point that I hope the Minister will respond to when the time comes. She states that:
"The proposed redefinition of scope for legal aid",
to remove education other than SEN,
- "appears to show a serious disregard for the rights of the child under both the UNCRC, and the recent guidelines adopted by the Council of Europe on child-friendly justice".
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I welcome this debate and in particular thank my noble friend Lord Clement-Jones for introducing an important amendment that would seek to make a change to paragraph 2 of Part 1 of Schedule 1 to the Bill. This is the paragraph that brings special educational needs within the scope of the new scheme.
The Government, in response to our consultation on this package of reforms, recognised the compelling arguments that stakeholders made concerning special educational needs cases. As a result, we altered our position on special educational needs, which has been recognised in the contributions to the debate. The Bill included provision for these cases when it was published.
Our intention is to cover all matters that can legitimately be classed as special educational needs issues. It has been brought to our attention by stakeholders, particularly
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The noble Lord, Lord Stevenson of Balmacara, spoke to Amendment 82ZA, which, as he indicated, would bring into scope all education matters not already covered by Schedule 1. As he said, we have retained legal aid for any education case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination, and current legal aid funding for appeals on special educational needs matters, as we have just discussed. We have also retained legal aid for education judicial reviews.
In practice, the amendment would retain legal aid for all education matters, including advice on admissions and exclusion decisions and for educational negligence damage claims, and would mean lost savings of approximately £1 million. The judgment that we have had to make has been to prioritise funding on the most important education cases, which are special educational needs, discrimination and judicial review. We believe that those are of the highest priority, and that advice on, for example, admissions, exclusions and damages claims are not. Of course, those are not unimportant, but where parents are not satisfied with an admissions refusal they can appeal to an independent panel. That requires them to set out in writing why they disagree with the admissions decision, and why they think that the admissions arrangements have not been followed correctly. Those are not usually legal arguments, and the local authority choice adviser can assist parents and attend the appeal hearing with them.
Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors, setting out their reasons for challenging the exclusion. Again, if they are unhappy with the decision permanently to exclude their child, they can appeal-currently to an independent appeal panel, but from September this year to an independent review panel. The Department for Education will fund the Children's Legal Centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line.
Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination, and legal aid is being retained for advice and assistance in such
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The other tier or category is education negligence claims, which have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid only on money claims that concern a significant breach of human rights or abuse of position or power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings and will be removed from scope. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement.
I have heard my noble friend Lord McNally say from this Dispatch Box on a number of occasions that very difficult tough choices have had to be made on these issues and that there has had to be prioritisation. We believe that we have focused resources on education cases of the highest priority. I hope that the House will recognise that, and I urge my noble friend to withdraw his amendment.
Lord Clement-Jones: My Lords, I propose simply to respond on Amendment 36, so if those on the opposition Front Bench wish to respond on Amendment 82ZA, I shall briefly pause. I see that they do not.
First, I should have declared an interest as the president of Ambitious about Autism, the education and special needs charity for autistic children. I know that both it and the Special Educational Consortium will be delighted by the Minister's response. I thank the noble Lord, Lord Howarth, and the noble Baroness, Lady Browning, for their contributions. The noble Lord, Lord Howarth, used a very felicitous phrase, "something of a cliff edge", about the 16-to-25 period. Of course, the experience of the noble Baroness, Lady Browning, in this area is enormous, and I particularly welcome her contribution.
I very much welcome the Minister's response and the fact that he has recognised the compelling arguments that have been made to him and to the Department for Education not only for the phase up to 16 but for the 16 to 25 year-old phase. I recognise that the amendment might not be fully technically correct but it might cover other sections-Section 139A is a possibility-that may need to be covered in the drafting.
I think that many noble Lords around the Committee are hoping that this is but the first swallow of summer as we progress through the Bill, but I am very content with the response today and beg leave to withdraw the amendment.
Amendments 36A and 36B not moved.
Amendments 37 and 38 had been withdrawn from the Marshalled List.
Amendments 39 to 41 not moved.
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42: Schedule 1, page 120, line 11, at end insert-
"( ) Civil legal services provided to an adult ("B") in relation to a court hearing in a matter arising out of a family relationship between B and another individual ("A") where B has abused A or there is the risk of such abuse and where the court certifies that due to the probability of cross-examination of A there is a need for both parties to be represented at that hearing."
Baroness Butler-Sloss: My Lords, this is the first of a group of amendments relating to domestic violence. Some of them overlap and are repetitive but they all have the same desire at their core-that the Government should listen a little more carefully to the very real concerns of many people about the incidence of domestic violence and the fact that the Bill, if not improved, may do a lot of damage to extremely vulnerable people.
I have also put my name to Amendments 45, 46 and 48. Amendment 42 relates to a situation where a woman alleges domestic violence against a man and he is not represented. He will therefore be asking her questions about the abuse which she says he has perpetrated. If that abuse has occurred, it will be an extremely painful experience for her to undergo that questioning without the intervention of a lawyer. I well remember the Minister pointing out on Monday that judges are there to keep matters in order. I can only say to him that that is not entirely easy because there is a right of cross-examination and any defendant has a right to put his or-sometimes a woman is an abuser-her case to the person making the allegations. Therefore, as I know from experience, the judge's ability to stop the sort of questions that will be asked will be quite limited. Some of those questions will have to be asked, but being questioned by the man who has committed the sometimes very serious domestic violence is in itself a form of abuse against the woman; as I said, occasionally a man is the victim.
I hope that the noble and learned Baroness, Lady Scotland, will be speaking to Amendments 45, 46 and 48, so I shall make only one or two brief points about them. I notice that Amendment 44 is very similar to Amendment 45, although our amendment is slightly broader. The definition of domestic violence currently proposed is, in my view and I think the view of many others, inadequate and requires to be much broader, particularly in relation to threatening behaviour and psychological behaviour. Some men drive their wives or their partners almost to suicide by never putting a finger on them; in many ways, psychological and threatening behaviour is even more dangerous and even more debilitating than the man who returns home drunk on Saturday night and knocks his wife around but who does not ill treat her from Sunday to Saturday. Psychological abuse is usually daily and nightly and, therefore, it requires a rather broader interpretation.
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I ask the Minister to pay particular attention to Amendment 46. The proposals of the Government about what will be acceptable domestic violence in
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Lord Macdonald of River Glaven: My Lords, I wish to speak to Amendments 43 and 44, to which I have attached my name, and to a part of the group which focuses on the question of domestic violence and the way in which the Bill approaches domestic violence.
The history of the justice system and domestic violence is not a very happy one. For many years, crimes within the home were hardly regarded as the business of the state; they were, in the rather grim phrase, "domestics"-issues to be sorted out as best as they could be between the parties. Of course, the problem was that the parties were very rarely equal. Children, who are often the most damaged victims, are the least equal of all. In all the years that I was a prosecutor, I saw the effects and consequences of that injustice. At its most brutal, I dealt with a startling number of women who had been murdered by their partners, and who had repeatedly been victims of persistent and escalating assault. In too many cases, those assaults had gone completely unpunished and undetected and they were allowed to escalate into killing. It would be difficult to imagine a worse failure of law enforcement policy.
When I was the DPP, the prosecution service and the police, notably aided and encouraged by the noble and learned Baroness, Lady Scotland, when she was a distinguished Attorney-General, spent a great deal of time on this issue, as she knows. We did research, we spoke to victims and to experts, and we educated ourselves, prosecutors and police officers. The most important lesson that we learnt was that the signals sent out by victims of domestic violence can be confused and difficult to read. Sometimes they have to be decoded and understanding that was the key to all the reforms that we undertook. Of course, people in these situations do not send out confusing signals or sometimes behave in ways that are, for us, counterintuitive because they are necessarily lying, but the complex human relationships that are in play do not always allow for a rational train of evidence, so the police and we as prosecutors had to think differently and imaginatively about this category of crime. The Government also have to do that.
At the most basic level, a woman who has been beaten up does not always come forward to make an official complaint, but the absence of a complaint is not evidence that a crime has not occurred. The British
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The truth is that an abused woman will not always report her assailant to the police. Often, she will not. If she does, she will not always support a prosecution. Often she will not; often she will return home to face more violence. No doubt sometimes she has children who want their father. Sometimes he is the breadwinner and she fears destitution without him. Sometimes she may simply continue to love him in some way that draws her back. As prosecutors, we learnt not to take the behaviour of victims of domestic abuse at face value. We learnt that we had to get beyond those responses if we were to get the assailant. That was the key: to get beyond the responses. The result was that prosecutions of domestic abusers rose dramatically, as did the rates of conviction. This was painstaking work and it would be a very great shame to see any of it undone.
Which of the lessons that we learnt have the drafters of the Bill learnt? The answer is: not enough of them. Frankly, in their understanding of domestic violence, the proposed legal aid reforms could have been written 10 or 15 years ago. It is a matter of great regret that a Bill presented by the coalition Government of which my party is a member appears to step backwards in expecting victims of domestic violence to conform to a stereotype of conduct, so that they will not be believed, their gateway will be shut and they will not get legal aid. This risks condemning many victims of domestic violence to a future with little or no legal succour. It is a policy with which the Government should not be associated.
In essence, the Government have done the right thing in Schedule 1 by retaining legal aid in private family law cases where domestic violence is present, but have done the wrong thing by requiring categories of evidence to support the existence of domestic violence that are very commonly absent, such as a criminal conviction, a finding of court and so on. So often, the victims of this sort of conduct seek advice and help from sources other than the authorities.
Lord Clinton-Davis: Has the noble Lord made representations to this effect? If so, what has been the reply?
Lord Macdonald of River Glaven: I am certain that the points that I and other noble Lords made were carefully considered by the Government, who I hope will continue to consider the points. My point was that frequently victims of domestic violence seek support other than from the authorities, for obvious reasons; they seek it from doctors, support organisations, social services and the like. Material from these sources should be acceptable as evidence for the purposes of the legal aid gateway.
We can dress up the Government's present scheme in any way we like, but the reality is that the legal aid budget will reduce as a direct result of the reluctance of many victims of intimate domestic violence to
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The Government's justification for the Bill's approach is, if anything, less attractive than its substance: namely, that we need a conviction or some other officially reported evidence of abuse in case women are tempted to make up allegations of assault in order to get legal aid. This is a rather depressing reinterpretation of the old stereotype of the woman who cries rape. Of course, women very occasionally invent allegations of rape but, in my experience both as a defence counsel and as chief prosecutor, these cases are exceedingly rare and very heavily outnumbered by cases in which the woman has been attacked. A vast and overwhelming number of women do not invent the attacks that have been visited on them. Domestic abuse is real and far too widespread, as I know the Secretary of State and the Minister realise and understand.
It is particularly difficult to understand why the definition of domestic violence in this Bill is different from and, on any analysis, narrower than the definition used by ACPO and the Crown Prosecution Service in detecting and prosecuting these crimes. I hope this is an accident. If it is, let the error be rectified at once. If it is not, let the Government think again. What possible justification can there be for this Bill to contain a definition of domestic violence that offers less protection to the victims of domestic violence than the definition used successfully day in and day out by our law enforcement agencies? If that is the reality, as I believe it is, this definition has no place in this Bill.
I accept that the legal aid budget must reduce. It is for this reason that I am able to support, as the Minister knows, many of the reforms proposed by the Government. Indeed, I have no problem at all with some of the more controversial proposals, including competitive tendering for criminal legal aid, although this does not make me very popular with many of my professional colleagues, but I have a major problem-
Lord Scott of Foscote: Can the noble Lord help me on one point? I think I understand well what psychological, physical, sexual or emotional abuse might consist of, but I find it very difficult to see what the adjective "financial" adds to a case where none of those elements is present.
Lord Macdonald of River Glaven: One can imagine a category of abuse that is primarily financial. Of course, it could carry in its train some of the other features that the noble and learned Lord has alluded to, but it adds something to the definition of domestic violence. We all know that financial power is an important aspect of the power relationship that can exist between men and women, particularly, as he indicates, women who are being abused in other ways. My view is that the adjective "financial" is an important part of the realistic and modern definition of what can cause and amount to domestic violence.
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I have a major problem with an approach that risks rolling back decades of progress in our understanding of a crime that is an absolute scourge, not least in the way that it condemns so many of the children who live with it to disordered and chaotic later lives of their own. Talking of cost, that brings its own very high cost, which all of us have to pay. We must have a system of legal aid that works properly to protect the victims of domestic abuse, understanding that it is money well spent. We must have a Bill with the modern definition of that crime and including provision for those who may be too scared or desperate to call the police. As we all understand, domestic violence brings a cycle of damage and despair that is deeply destructive and anti-social. No Government should ever find themselves on the wrong side of this argument.
Lord Carlile of Berriew: My Lords, I support these amendments. I will particularly refer to Amendment 46. It seems to me that sub-paragraphs (g) (j) and (k) are particularly important. They relate to the less formal types of evidence as opposed to court convictions and the like. These amendments have been eloquently and accurately spoken to by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Macdonald, and I do not want to add too much, apart from a couple of examples. Before I give them, I shall make a point of principle. From my experience as a legal practitioner, it is clear to me that the earlier legal aid is given for the earliest possible intervention, the least harm is likely to be done. I urge the Government to accept that as a very sound principle. I will now give my two illustrations that lead me to that principle.
On one occasion many years ago, when I still practised family law, I was asked to obtain an injunction for a lady from a small town in rural Wales. I was then practising in Chester, and the town in which she lived was about 50 miles west of Chester. She had been driven by various forms of abuse by her husband, some financial-the deprivation of money for daily expenditure for herself and the children, so she could not even buy the children shoes-some emotional and some physical, eventually to go to that daunting place, the local solicitor's office on the high street. The great solicitor Mr Jones-and he really was called Mr Jones-decided to apply for an injunction, and I was instructed.
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When she came to my chambers in Chester, she told me that this was an absolutely terrifying experience for her; she had never been to England before. We went and obtained the injunction in the judge's domestic dining room. She left the occasion much mollified and placated by the friendliness of the law-not least because she had won. However, much worse consequences could have ensued if she had not finally had the courage to go to Mr Jones's office. Over the years I have appeared for both the prosecution and the defence in murder cases where there had been clear domestic abuse but the steps which that lady took had not been taken and eventually distraction arose.
My second example is much worse and I am afraid it has haunted me for the past 30 years. After a great deal of domestic abuse, a wife was eventually driven to obtain orders from the local county court, again in
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It seems to me that if legal aid were given for early interventions to take place, we could avoid not only those kinds of tragedies but the costs for other parts of the public service that ensue if legal aid is not made available. The consequences of late intervention can lead to mental health services being involved, and it is worth recording that if somebody ends up in privately run mental health services as an in-patient, albeit paid for by the NHS, it can cost as much as £150,000 per week-I repeat, per week-for that kind of intervention to take place. These figures are readily available. There can also be educational difficulties which hold back children for the whole of their lives. People can end up in prison, which is very cheap compared with mental health services: it costs a mere £40,000 per year for each prisoner, even if sentenced to short terms of imprisonment.
I say to my noble friend the Minister that the Government are cutting off their nose to spite their face with these provisions. There is absolutely no evidence of real savings being made, and the real social cost may be dramatic and very serious.
Baroness Scotland of Asthal: My Lords, it is a real privilege to follow the last three, very powerful, speeches in support of this series of amendments. For completeness, I declare my interest as the chair of the All-Party Group on Domestic and Sexual Violence, and founder and patron of both the Corporate Alliance Against Domestic Violence and the Global Foundation for the Elimination of Domestic Violence.
I am particularly grateful to follow those three powerful speeches because your Lordships have had a taste of the different elements that participate in the criminal and civil justice process to bring relief and succour to victims of domestic violence. Those elements are the experience of the noble and learned Baroness, Lady Butler-Sloss, as a judge and previous president of the Family Division; the experience of the noble Lord, Lord Macdonald, in his sterling work dealing with these issues while he had the privilege of being our Director of Public Prosecutions; and, of course, the wealth of experience of the noble Lord, Lord Carlile.
I do not propose to reiterate everything that they have said about the nature of domestic violence but it is important for us to remember that it can affect one in four women in our country and one in six men, and that the secondary victims of domestic violence are the children in those families. Between 750,000 and 900,000 children in the United Kingdom are adversely affected by domestic violence. Tragically, we see them overrepresented in every indices of dysfunction, whether it is alcoholism, mental illness, criminality or lack of educational and physical milestones being met. The breadth of domestic violence has been well understood.
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To say a word in response to a question about financial violence from the noble and learned Lord, Lord Scott of Foscote, regrettably-as the Minister will know from his own readings of this subject-financial violence can often be the tool used to restrict a woman and a victim's movement, and to impose on them situations which cause them physical and emotional harm. Having no money, being controlled and being restricted can have a very deleterious effect.
What the noble Lords, Lord Macdonald and Lord Carlile, have said is correct about the way in which we have learnt about domestic violence. Over the past 30 years, the learning has come, regrettably, at the cost of listening to victims who have suffered from the mistakes that we made in the past; namely, our inability to understand or to respond in a holistic and joined-up way.
The work that has been done, not least in this House by Members and elsewhere, has enhanced our understanding and the definition in Amendment 45, which is tabled in my name, that of the noble and learned Baroness, Lady Butler-Sloss, the right reverend Prelate the Bishop of Leicester and the noble Lord, Lord Blair, is not innovative. It is the accepted definition of domestic violence used on a day-to-day basis by courts, prosecutors, advocates, third-party non-governmental organisations, individuals and elsewhere. The way in which that definition has been crafted has been influenced by the experience culled over a period of 30 years.
Before this Bill, there was never any suggestion that any amendment of that definition was immediately necessary to prevent people taking advantage of it in a way that was not proper. As the noble Lord, Lord Macdonald, has said, the real issue that has troubled many of us is how we persuade and enable those who are in need of the succour that can be provided to come forward, not how we stop them making false allegations. That problem has been alleviated but not expunged. We still have to encourage. Regrettably, 89 per cent of repeat victims of domestic violence happen to be women. One in six is a man. It is a lower level but they tend not to be repeat victims, so the problem remains.
The definition adopted by the Association of Chief Police Officers has served us well. I do not for a moment suggest that the Government are not committed to alleviating domestic violence. The fact that the Government have excluded domestic violence victims from the general legal aid ban on family law is important. I acknowledge that immediately and we should applaud it. I know that the Minister's colleague in another place, Mr Djanogly, said in terms:
"If domestic violence is involved, the Government believe that legal aid should be provided".-[Official Report, Commons, 31/10/11; col. 638.]
We say to the Minister today that, in order to fulfil that acknowledged commitment, the definition used in the Bill has to be changed and should reflect the accepted definition which has been used on a day-to-day basis by everyone. If it is not, we run the risk of excluding about 46 per cent of the domestic violence victims who are currently eligible for legal aid.
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What the noble Lord, Lord Carlile, said was absolutely right: we need prevention and early intervention. We have been encouraging victims to come not when they reach the stage of being a high-risk victim on the multi -agency risk assessment Richter scale, because, quite frankly, that is sometimes almost too late. To satisfy that high-risk criterion, victims have to be at risk of death or grievous bodily harm. We have encouraged victims to seek appropriate intervention and relief at an early stage, when there is a punch, a kick or a push, and that has started to happen. We are winning on that. The Minister will know that, since 2003, when we jointly started to look at this issue in a more concentrated manner, we have reduced domestic violence according to all the figures by 64 per cent and have saved-I know how important is the economic cost at this moment of real austerity-£7.5 billion a year. That is a real saving and we in this country now know how to deliver it.
A key component of that early intervention and reduction in economic costs was, and always has been, the availability of legal aid for victims who need it. By intervening early, we have reduced the level of deaths. The noble Lord also knows that, if we are dealing with a murder investigation, it will cost the state at least £1 million from interdiction to conviction. If children are involved, we can be looking at £2 million per case. One has only to do very simple maths to work out that failure to give legal aid at a judicious moment will cost us far more in the long term than giving it early and allowing, quite often, the woman and her children to have appropriate protection, because the damage that is done to children can affect them for the rest of their lives.
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So I strongly urge and invite the Minister to ask his right honourable friend the Lord Chancellor to think again. On Monday night, I know that the Minister waved his white flag. I would encourage him to wave it even more vigorously in relation to this issue, confident that he can return to his right honourable friend the Lord Chancellor and assure him that in so doing he will save lives and cost. If the Minister has any information that indicates that there will be an economic saving in costs, we would obviously be most grateful to hear on what basis those savings will be found.
Turning to the evidential base, I want to add a little to what has been said in support of Amendment 46. The Minister will recognise all the forms of evidence that are laid out there because those are the sources of evidence that the UK Border Agency currently uses. An applicant asking for an extension of stay or asking for the right to remain here will have to produce them if they wish to establish that domestic violence has been visited upon them. Noble Lords will know that since these provisions were introduced and applied by the UK Border Agency, no difficulty seems to have arisen in relation to misuse or abuse of them-both with the definition and with the sources of evidence. We know beyond peradventure that this works. Although I hear what his honourable friend in the other place says about wanting to restrict these sources of evidence in order to discourage those who would seek to make unmeritorious claims, I can certainly assure the Minister
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It is important to think about the reality of the damage that would be caused if these sources of evidence are not accepted. We should look at the average case, such as when a woman has run from her home. She manages to go to her GP, who sees the injuries and notes them and then sends her to hospital because there are fears that she may have cracked a rib or another bone. She is seen by the medical staff and they verify that the injuries that she complains of are genuine. Her neighbours may have come in to rescue her from an assault. They may not have seen the assault taking place but have noted what was happening and taken her away. Social services may have come along and examined the children, spoken to them and heard what they had to say. All of that might have been used by the police who then came along and arrested the man. He may then acknowledge that he has indeed committed the offences that are alleged against him. Even if all those things had happened, under these provisions the woman would not be entitled to legal aid. That cannot be right.
As the noble Lord, Lord Macdonald, has made clear, quite often women will stay for a long time in such circumstances. Recent research shows that on average a woman with children will stay for five and a half years in such a situation before she leaves. She may go to court and get an injunction or an order against the husband. He may be convicted of grievous bodily harm, sentenced to five years in prison, serve two and a half and come out. There is still a real risk to his wife and his children. The police may agree that he continues to present a risk to them. Under these provisions, because it would have been beyond the 12-month period, such a woman would not be entitled to legal aid. I know that cannot be what the Government wish to happen.
The injustice of these provisions is plain and I cannot believe it is intended. I do not wish to believe that the Government intended to turn the clock back not 15 years, as the noble Lord, Lord Macdonald suggests, but actually by 30 years. We started this work with the Matrimonial Causes Act 1973, and thereafter legal aid has been there throughout the whole period. I do not believe that this is the noble Lord's intention or that of his noble and learned friend the Lord Chancellor. Therefore, I must believe it is because the Government do not understand. That is disappointing and sad, because I thought that both the Liberal Democrats and the Conservative Members had been with us and that all of us were on the same journey. If the Government have lost their way, I am glad to see there are many on the Liberal Democrat Benches-and I am sure there will be on the Tory Benches, too-who will help them out.
I also want to speak in support of the amendment spoken to by the noble and learned Baroness, Lady Butler-Sloss. She is right when she says that legal aid should be granted where cross-examination is conducted by the perpetrator of the abuse, so I ask the noble Lord to think again. There will be even more rejoicing-not just in this place but elsewhere-if the noble Lord
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The Lord Bishop of Chichester: Before the noble and learned Baroness sits down, could she help me just a little? On Amendment 45, it does seem to me that relying upon a known, approved and accepted definition is clearly right. Of course I accept that, for all the very powerful reasons that have been given. However, since this was crafted, we have got a lot more experience in respect of other kinds of domestic abuse, in particular that of the elderly. We have become very aware recently of the danger to people in care homes but not quite aware enough of the possibility of domestic violence against the elderly as well. Although it is probably too late to bring this into the Bill, could she help me in pressing the Minister to respond as to whether, where it says at the end,
we ought to assume "regardless of age, gender or sexuality"?
Baroness Scotland of Asthal: My Lords, that is right. We tend to think of familial violence as violence within a family group and people living together in partnership. Regrettably, the right reverend Prelate is right in saying that age does not prohibit violence-domestic violence is no respecter of persons, irrespective of age, ethnicity, economic background or any dividing issue one can think of. Regrettably, domestic violence affects everyone, and this definition, which has been used, continues to be efficacious and would include those issues.
I should also say that of course the Government themselves have been undertaking a review of domestic violence strategy. In part of that strategy, the definition is being considered and, from what I understand of the consultation, they are seeking to widen the net and not restrict it. That is why these provisions are so concerning and-I have to say-utterly surprising. If there was one area in which I did not believe that there would be any dissent at all among the parties or any of our Benches, it would have been this. So there is deep concern and surprise but also bitter disappointment that we are having this debate.
Lord McNally: My Lords, the other evening I said that a smile always came to my face when the noble and learned Baroness reached the Dispatch Box. I think there is usually an exception, and that is when you are in the firing line from her formidable advocacy.
The noble and learned Baroness put her finger on it when she said that domestic violence has its impact on every index of dysfunction in our society. I think that we all accept and understand that. My noble friend Lord Macdonald made the point in acknowledging that the Government have from the very beginning, as the noble and learned Baroness said in quoting my honourable friend Jonathan Djanogly, intended to put domestic violence within scope.
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This debate is about whether we have got the definition right. Obviously in discussing that, I have to take into account the comments of a former President of the Family Division, a former Director of Public Prosecutions, a former Attorney-General with considerable lateral experience as well in these matters, and even my noble friend Lord Carlile, who in this case is just an honest jobbing barrister. Obviously, if one gets that weight of evidence, we go back and look carefully at what has been said. I did not realise that this Government were so radical, as was suggested by the query of the noble Lord, Lord Clinton-Davis. Of course, I have talked to my noble friends and have tried in the course of the Bill to be available to Members on all sides of the House. However, as I said at an earlier stage, I am trying to use this Committee stage to listen and to take on board and match our aspirations for the Bill with the experience and wisdom that we receive in Committee to see whether there are areas in which we will make changes when we get to Report, or areas where we simply say to the House that we simply disagree. The spirit is one of listening.
I agree with the noble and learned Baroness that it should be a matter of cross-party co-operation to deal with this scourge of domestic violence. I visited Holloway Prison and was taken to see an ongoing programme of training and educational skills for girls. I went around talking to a number of them. The lady who showed me round suddenly said something that really chilled me. I said, "This seems to be working very well". She said, "Yes, of course, but you know these girls are probably in the safest place that they have ever been in their lives". So please do not think that our approach is either frivolous or without concern for the very real problems that domestic violence causes. Again, in a phrase that was used by my noble friend Lord Macdonald, it is certainly not our intention to roll back the decades of progress.
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Let me deal with the amendments. Points have been made that might not be exactly the facts. For example, the noble and learned Baroness, Lady Scotland, gave the illustration of a man who has been imprisoned for violence for five years but comes out in two and a half. I am advised that the time limit will not apply to a conviction for an offence of violence against the application for legal aid, so if a woman's partner were convicted of such an offence against her and imprisoned, the conviction would be a qualifying form of evidence following a release, even if that were more than 12 months after conviction. There were many other points that people have made. Let me read the Hansard of how those points have been made and let noble Lords read the reply that I am giving. Then, as the noble and learned Baroness said, we can look at this issue, because I am not in the business of either rolling back decades of progress or ignoring a very real problem about that I know all Members of this House are deeply concerned about.
Amendment 42 would bring into scope legal aid for the perpetrator or alleged perpetrator of abuse if the courts certified that there was the possibility of cross-examination. I understand the concerns that the noble
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The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have the power and the training to manage the situation and to make sure that the court's process is not abused, and that hearings at which oral evidence is given are handled sensitively. For example, the court in family proceedings is specifically empowered to limit cross-examination and it can have questions relayed to the witness rather than asked directly, use video links or intervene to prevent inappropriate questioning. We recognise the importance of funding in a range of cases where the interests of victims of domestic abuse are paramount, and this is reflected in the final decisions that we have reached.
Lord Carlile of Berriew: Before my noble friend moves on from that point, can he go a little further in answering the issue raised by the noble and learned Baroness, Lady Butler-Sloss, about cross-examination? Yes, of course the judge has power to limit inappropriate cross-examination, but the judge cannot prevent the person concerned putting their case, and putting it fully and properly. That is the issue that the noble and learned Baroness is trying to deal with. It is in that situation that the allegedly abused person faces real anguish, and in which the protection of the judge is but a very small instrument.
Lord McNally: I will take this back but, again, I am speaking as a layman to professionals. As far as I understand it, there are increasingly ways in the courts of preventing that kind of face-to-face, aggressive cross-examination. I think that there was a case recently which caused a good deal of public comment and distress. I will take the matter away and take further advice but, as I say, both my impression as a layman and the advice that I have are that there are safeguards to prevent that kind of brutal, face-to-face, intimidating cross-examination. I hear what my noble friend says and I will take further advice on the matter.
I turn to Amendments 43, 44, 45, 46 and 48 and start by reiterating why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid as it stands is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary relief applications to divide family assets, legal aid will no longer be available. We believe that it is right to
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We accept, however, that mediation might not be suitable in every case-particularly, as we made clear, in cases involving domestic violence. It is important to remember that the inclusion of this provision is to ensure that legal aid remains available for private family law cases where there is evidence of domestic violence, creating a disadvantage for one party, and cases where a child is at risk of abuse.
Amendments 44 and 45 would put in paragraph 10 of Schedule 1 to the Bill, in place of the existing definition of abuse, parts of the definition of domestic violence first used by the Association of Chief Police Officers but subsequently more widely adopted for operational purposes-although not, it should be noted, by the courts. The existing definition of abuse used in the Bill is a broad and comprehensive one, having been drafted deliberately and explicitly so as not to be limited to physical violence. It should be noted that it is used elsewhere in Schedule 1: in paragraph 3, which provides for legal aid to be available in relation to the abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse.
Baroness Butler-Sloss: I hope that the Minister will forgive me for interrupting him. Can he explain what is wrong with the ACPO definition and why it is preferred to have a different definition, twice to be found in the Bill but not to be found elsewhere? As far as I know, there has been no broad definition by the judges of domestic abuse, which has been referred to in all its various forms. I am absolutely certain that the courts accept the ACPO definition.
Lord McNally: I will write on this matter, but I think that here the noble and learned Baroness is wrong. As far as I understand it, the Supreme Court did not accept the ACPO definition of domestic violence. If the noble and learned Baroness will bear with me, I will come to that point in the brief-there is a part that deals with this.
Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others, lest confusion should result. The definition should also be seen in the light of the Bill's structure and the purpose of the paragraph where it appears.
I want to know-"like most normal people", I was going to say-why on earth, if there is a perfectly good ACPO definition, we do not use it. The Supreme Court held that domestic violence could extend to psychological abuse but did not adopt the ACPO definition. However, the majority of the court indicated approval of the approach of what is now Practice Direction 12J, supporting the Family Procedure Rules2010. For its purposes, it defines domestic violence as,
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- "physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm".
Baroness Scotland of Asthal: Was that not a case in which the Supreme Court was being asked to determine whether a specific aspect of emotional abuse was to be included so that someone could get relief and, in so doing, referring to that aspect rather than any other? Could the noble Lord tell the Committee to which case he is referring?
Lord McNally: If I am misleading the Committee in any way in this exchange, I will of course write and correct it. The Supreme Court did not adopt the ACPO definition of domestic violence in the Yemshaw case. If the noble and learned Baroness questions me any more, she will go way above my pay grade in terms of the law.
Baroness Scotland of Asthal: One of my colleagues has just suggested that maybe the noble Lord is in need of a little legal aid.
Lord McNally: Every time I look up, the noble Lord, Lord Beecham, is speaking somewhere in the Chamber. The Opposition are overworking the man-give him the night off.
The definition should also be seen in the light of the Bill's structure and purpose. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subject to domestic violence by the other party to those proceedings and is likely, as a result of that abuse, to be intimidated or otherwise disadvantaged in presenting his or her case, should have access to legal aid. It does not provide that any individual who has been the subject of, or is at risk of being the subject of, abuse-as defined in that paragraph-will qualify regardless of what evidence of abuse might exist. Not every such individual will be intimidated or otherwise disadvantaged in the way that the paragraph is intended to address.
The paragraph establishes a description of legal services. Whether an individual qualifies for them in any specific case requires not only that the individual falls within the categories in paragraph 10 but that the individual meets the criteria to be established in regulations made under Clause 10. As has been explained in the Government's response to consultation and in debates on the Bill, those criteria will set out the specific requirements as to the evidence of the fact or risk of abuse. Therefore, the definition of abuse itself is only a preliminary part of the picture. However, it is important that we get it right. I suspect that the Committee will say "hear, hear" to that.
The definition of abuse presently in the Bill embraces mental as well as physical abuse, neglect, maltreatment and exploitation. These references would cover, for example, abusive behaviour relating to family finances-a point that was raised earlier. The definition in the Bill would not exclude from scope any of the types of abuse covered by the definition used by the Association of Chief Police Officers, so this part of the amendment
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The ACPO definition is operational in nature and purpose. Legislation serves a different intent in setting the framework for the way in which legal aid systems will operate and the definition is drafted to better fit this purpose. I reiterate that this does not mean that there are circumstances covered by the ACPO definition which are not covered by that in the Bill. Indeed, my colleague the honourable Member for Huntingdon, Jonathan Djanogly, issued an invitation during Report in the other place for Members to give any examples of cases that would be excluded by the Bill's definition compared with that of ACPO. It might also be noted that in terms of the range of persons involved the ACPO definition is narrower than that in the Bill, the Bill's definition being linked to that already used in the legislation governing family homes and domestic violence in Part IV of the Family Law Act 1996. I speak as a lay man. That is the explanation. That is why we did not move ACPO into the Bill en bloc. I ask noble Lords to study Hansard. If the explanation does not stand up, I invite the noble and learned Baroness and others to come back to me on that point between now and Report.
Before I move on I would like to address one other issue relating to these amendments which could be misleading. The reference to "any incident" might be read as securing legal aid for any person who could point to some sort of incident regardless of whether it was serious or minor, such that the victim would not genuinely feel inhibited in pursuing litigation against the other party. That would not reflect the underlying intention nor be the effect in practice if the regulation required certain forms of proof. The touchstone for whether a party obtains funding must be whether the abuse was such as to inhibit the ability to present their case against the other party. The circumstances that will be accepted as evidence of abuse will turn on the application by courts, prosecutors and other agencies of their existing criteria. Where the courts and others have determined that the abusive conduct is of a level that protective action or prosecution must be taken, legal aid will be available.
Amendments 46 and 43 would set out a range of forms of evidence that would be accepted as demonstrating domestic violence for the purpose of qualifying for legal aid in private family law cases. We want victims of domestic violence to have the benefit of legal aid in such cases where they will be disadvantaged by facing their abuser as the other party. It is important to remember that our proposal is that victims of domestic violence remain in scope of legal aid provisions. However, we heard many concerns during the consultation that this proposal could see a rise in unfounded allegations and we want to guard against that. Therefore, we need
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We indicated the intended forms of evidence in consultation and listened to views expressed in response to that consultation about what should be accepted as evidence of domestic violence. As a result we have widened the range of forms of evidence. Only one of these forms of evidence will be needed, so legal aid will be available for victims of domestic violence in private family law where any one of these criteria is met: a non-molestation order; an occupation order; a forced marriage protection order or other protective injunction against the other party which is either in force or has been made in the past 12 months; if there is a criminal conviction for domestic violence committed by the other party against the applicant for funding unless the conviction is spent; if there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding; if the applicant for funding has been referred to a multi-agency risk-assessment conference as a harassed victim of domestic violence, and a plan has been put in place to protect them from violence by the other party; or there has been in the court a finding on fact of domestic violence by the other party, giving rise to the risk of harm to the victim.
Baroness Scotland of Asthal: I hesitate to interrupt the noble Lord but can he help me on a point about legal aid being withdrawn from private law cases? He will know that one of the main ways of there being a finding of fact is through those private law situations. If there is an impecunious litigant, can he help me as to how that litigant-normally a woman-is going to get those findings of fact if she does not have legal aid to do so? That is one issue.
Secondly, has the noble Lord seen or read the recent survey by Women's Aid, Rights of Women and Welsh Women's Aid that found that the majority of respondents did not report abuse the first time it occurred but typically did so after being assaulted between three and five times? Although 99 per cent had reported at least one incident to the police and/or the police had attended an incident, only 8.3 per cent would be able to prove that they had had an ongoing criminal proceeding in the previous 12 months. There seem to be a lot of practical difficulties and I wonder whether the noble Lord can help the Committee in relation to those matters.
Lord McNally: The Welsh Women's Aid report has been published very recently and we will look carefully at it. I should point out that the organisation surveyed women who are in receipt of domestic violence services
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Baroness Scotland of Asthal: My Lords, I do not by any means want to harry the noble Lord but, given what he said about the need for flexibility and certainty, will he consider putting all the evidential issues into the schedule and providing us with an amendment we can look at? Perhaps we could have something such as an affirmative resolution in relation to these issues, which would give us flexibility-if that is what the Government think would be necessary-and clarity as to what evidence would acceptable. I am making a suggestion to the noble Lord that I will not necessarily be bound by, but I just want him to think about it.
Lord McNally: I will very happily think about it and I naturally assume that the noble and learned Baroness is trying to help me. I am very grateful for that. This reply and this whole debate will need to be looked at to see whether we are achieving our real objectives of getting something that is fit for purpose-although I hate using that phrase-in terms of addressing a matter of genuine concern right across the House. There are no differences on this and I freely admit that I do not have the noble and learned Baroness's detailed experience of these matters. I hope that she will accept that I share her commitment that we get this right.
It may be helpful to give some idea of the prevalence of those forms of evidence. About 24,100 domestic violence orders were made in 2010; about 74,000 domestic violence crimes were prosecuted in 2009-10; and there were 53,000 domestic violence convictions. About 43,000 victims of domestic violence were referred to multi-risk assessment conferences in the 12 months up to June 2010. Clearly, those numbers will overlap to a certain extent but, to compare, the Legal Services Commission funded legal representation in about 69,000 private family law cases in 2009-10, not including legal aid for protective injunctions. The forms of evidence we intend to accept will meet a very high standard of objectivity. We are concerned that many of the additional forms of evidence suggested in the amendments would rely on the word of those involved and provide an incentive to make allegations where none presently exists. However, I also heard what both the noble Lord, Lord Macdonald, and the noble and learned Baroness said.
Let me be clear. We are not questioning the integrity of genuine victims. However, during the legal aid consultation, concerns were expressed about providing an incentive for unfounded allegations. Accepting self-reporting without objective evidence would prevent us from focusing assistance on those victims of domestic violence who would be unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments
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Amendment 48 would prevent a time limit applying to any evidence. We have already said that a 12-month period, where relevant, will apply, but we consider that 12 months will be an appropriate period to protect victims and enable them to deal with their private law issue. The point made by the noble and learned Baroness about an intervening prison sentence would not interfere with that rule. If the criteria were to rise again-for instance, if a second protective injunction is made-the period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to a breach of an individual's right under the European Convention on Human Rights, in particular Article 6.
This has been one of the most important debates on the Bill because, as all those who have contributed said, it is essential that we get this right. There have been some very well informed and committed speeches. I have put on record the Government's approach, which is to get it right on domestic violence and the legal aid that we provide to those who are subject to it. With that, I hope that the noble and learned Baroness and others will not press the amendments today but allow me to go away, study the debate and the proposals made, match the commitment that we all share to what is in the Bill and return to the matter on Report.
Baroness Butler-Sloss: My Lords, I thank all those who, with a great deal of knowledge, have contributed to this important and anxious debate. It is obvious that the Government are entirely committed to doing their best to combat domestic violence, so the only issue between the various speakers in the debate has been the best way to achieve it in the legislation before the Committee.
I am very grateful to the Minister for his obvious concern, and I hope that he will go away and think about what those of us with some knowledge of these matters have said. If I may respectfully say so, it is equally important that the Lord Chancellor reads and takes account of what has been said.
5.15 pm
Lord McNally: That can be taken as implied. I assure the noble and learned Baroness that when I tell him who has spoken and what they have said, he will listen. Taking up the point made by the noble Lord, Lord Clinton-Davis, it is not that we do not talk to each other; we are following the process of the Bill. I am grateful that the Committee is taking this approach, as we can look at the arguments that have been made and think very hard about the issue before Report.
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Baroness Butler-Sloss: I thank the Minister. I found it absolutely irresistible to say that. Each of the points that we have been dealing with is important but two of them are particularly so. The first is the definition. I think that we might all do more work in looking at the definition-in particular, by accepting the Minister's invitation to see whether the wording in Schedule 1, as he has explained it, really does meet the ACPO requirements. If it does not, we should ask why not, and to what degree it does not meet them.
The second point is the very important list in Amendment 46. With respect, I would adopt the suggestion of the noble and learned Baroness, Lady Scotland, that these formulae for triggering legal aid in domestic violence should be in the schedule. As I understand it, the Minister's alternative suggestion is that they should be in the regulations. It would be enormously helpful, before Report, to have a rough draft of what the regulations are likely to provide so that we may know that what we are all worried about will be found in them. The Merits of Statutory Instruments Committee, of which I am a member, is all too well aware that a statutory instrument either comes in or goes out. There is absolutely no possibility of amending it unless the government department is prepared to take it back and rewrite it. It would be much better if we knew in advance what was going to be in the regulations, rather than having to attack a statutory instrument at a later stage, which is always an unhappy situation. However, as I said, I am personally very comforted by what the Minister has said.
I want to make one point about Amendment 42. I suggest that the advice that the Minister receives is theoretical rather than practical and on the ground. I wonder whether any of those who have given him advice about what goes in court appreciates that a defendant always has the right to put his case. That is the point that I made in my preliminary observations and it was a point also made by the noble Lord, Lord Carlile. The judge cannot stop that, but it can be a real extension of the domestic violence. I pursued that matter because one has to bear it in mind. Judges can ameliorate the position but they cannot prevent the defendant having the right to put his case. If he does not have that right before the judge, he can appeal to the Court of Appeal and ultimately to Strasbourg under the articles of the convention. Therefore, human rights apply to the defendant as well as to the victim. That is the problem and it is why legal support for the defendant would be a protection for the victim. Having said that, I beg leave to withdraw the amendment.
Amendments 43 and 44 not moved.
45: Schedule 1, page 120, leave out lines 42 to 45 and insert-
""abuse" means any incident or repeated incidents of threatening behaviour, violence or abuse (whether
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Baroness Scotland of Asthal: I shall not move Amendments 45 and 46, but I can reassure the noble Lord that, if his efforts prove to be unfruitful, we shall certainly be back.
47: Schedule 1, page 121, line 47, at end insert-
"( ) Civil legal services provided to an individual who has, or it is alleged will, put the child at risk of abuse in relation to a court hearing in a matter in relation to the orders and procedures set out in sub-paragraph (1), and where the court certifies that due to the probability of cross-examination there is a need for them to be represented in that hearing."
Baroness Butler-Sloss: This is another aspect of a situation in which the possible perpetrator, unrepresented, cross-examines a witness. The Minister said in respect of an adult victim of domestic violence that they would not necessarily be the most vulnerable of the people who come before the courts. The amendment relates to the most vulnerable because it relates to the pretty unusual, but not absolutely exceptional, situation in which a child has made allegations against the father not in a public law case but in a private law case. Norgrove, in the family justice review, underlines the fact that a proportion of abuse cases come through the private law sector. In that sort of case, the father has the right-it could be the mother, although generally it is the father-to cross-examine the child if the child is making the allegations and comes to court. If the father cross-examines the child about the abuse that the child has said he or she has suffered at the hands of the father, that is a further form of abuse of a really appalling kind. It would be rare and there would be very little expense. It would happen only where the judge said that the child has to give evidence-in most cases children do not give evidence-and only where the father wanted to ask the child questions.
Again, the father or the mother who is accused of abuse has the right to put the case to the child that it is not true. This can be done by a lawyer. It is upsetting for a child, but it can be done with a considerable degree of discretion. It is done very regularly in the criminal courts by barristers and solicitors, many of whom have had training in how to ask questions. What on earth would the Minister think of an eight or nine year-old who is able to explain very clearly what has happened to him or her being cross-examined by the father about the intimate allegations of how the father has behaved? I beg to move.
Baroness Scotland of Asthal: I support the noble and learned Baroness in this matter. She is absolutely right that these cases are rare, but unfortunately they tend to be the most painful. The opportunity for the judge who is managing such a case to be able, if he or
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Lord McNally: My Lords, I do not want to get into a situation where I take things away and give the impression that the case has been made. However, again, I must listen to a former president of the Family Division and a former Attorney-General when they say that there is a problem. The noble and learned Baroness, Lady Butler-Sloss, said that my advisers cannot have much experience of what happens in court. I can only say that our position is based on the assumption that judges are able to manage their cases in such a way as to prevent the kind of confrontation that we are concerned with here.
I will go away and take further advice on this. It has been examined in the other place. I do not want to leave a situation where very rare cases are not covered. On the other hand, we do not want automatically to extend funding to alleged perpetrators because that is not our line of travel as we try to focus aid on the most vulnerable and needy. It would be a mistake to assume that the only means of protecting a prospective witness, however vulnerable or young, is to fund representation for the prospective questioner. However, the two noble and learned Baronesses speak from considerable experience. I will test that experience with my advisers. If the noble and learned Baroness will withdraw her amendment, I will either reassure her before Report or we will come back to this then.
Baroness Butler-Sloss: I am very grateful for the support and experience of the noble and learned Baroness, Lady Scotland. As a distinguished former family practitioner she knows exactly what I have been talking about. There are only two former family judges in the Chamber at the moment: the noble Lord, Lord Elystan-Morgan, and me. He has just indicated that he agrees with me, in particular that a judge could not protect a child where the father or mother had the right of cross-examination in order to put his or her case. That is the problem. It is rare. Therefore, dealing with it would be very inexpensive. It might happen once or twice a year at most, and the judge would be required to certify the case. Judges will be well aware that legal aid is not to be easily given. They will be well aware that to certify a case would be very unusual. However, the situation exists and children require protection. I am grateful to the Minister for saying that he will at least take away the matter and think about it. No doubt he, and all of us, should have great respect for his advisers, but they do not understand the rights of defendants quite as well as those of victims. For the moment, I beg leave to withdraw the amendment.
Amendments 48 to 52 not moved.
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53: Schedule 1, page 125, line 31, at end insert-
"Best interests of patients16A Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment.
Exclusions
16B Paragraph 16A is subject to the exclusions in Parts 2 and 3 of this Schedule.
Definitions
16C For the purposes of this paragraph "medical treatment" has the same meaning as in the Mental Health Act 1983."
Lord Thomas of Gresford: My Lords, the amendment was suggested by the Bar Council to put a particular issue into scope. It refers to:
"Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment".
It arises out of a case called Re M, which was heard very recently by Mr Justice Baker. It was a case where someone was in a vegetative state, or the equivalent, and the family made application for the withholding of artificial nutrition and hydration from the person concerned. It was one of those terrible cases that one hears about from time to time. The judge made this particular series of observations, which I draw to your Lordships' attention, in the course of his judgment. He quite deliberately set out observations for future cases. In paragraph 260, he said,
- "given the fundamental issues involved in cases involving the withdrawal of ANH, it is alarming to the court that public funding has not been available to members of the family to assist them in prosecuting their application. In the event, the Applicant's team has acted pro bono throughout the hearing and during much of the very extensive preparation. I stress that this has not caused any disadvantage to the Applicant ... the family could not have had better representation. But it is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration. In this case, the "playing field" was level because of the exceptional generosity of the Applicant's lawyers. In other cases, members of a family who wished to ask the court to authorise the withdrawal of ANH but did not qualify for means tested public funding may have to appear in person, given the very high costs of litigation. Such a situation would seem to infringe the family's rights under Article 6 of ECHR. There are many demands on the restricted legal aid budget, but consideration should be given to extending the right to non-means tested public funding to family members seeking to bring this type of application. At present such non-means tested funding is available to parents whose children are the subject of care proceedings under the Children Act 1989. That provision is justified by the fundamental and life-changing consequences which flow from the making of a care order. The same argument applies to applications for the withdrawal of artificial nutrition and hydration".
Your Lordships will appreciate that these cases unhappily happen from time to time, and when they happen, they exercise the family members, the practitioners and the judge to a very considerable degree. Each case has to be very carefully examined. In this case, the judge refused the application and said that the life of the individual concerned should be allowed to continue. The Bar Council's proposed amendment would ensure
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Baroness Butler-Sloss: My Lords, I support this amendment. I declare an earlier interest in that I was the judge who tried nearly all the permanent vegetative state cases for the withdrawal of hydration and nutrition. I never had the case of M, although I very nearly did. In fact, the patient, who was on the verge of being in a permanent vegetative state, died. It is an extremely rare case where it is uncertain whether somebody is in a permanent vegetative state or has minimal consciousness. At the moment, the only decision has been against withdrawing nutrition and hydration. This situation will arise from time to time. It will be very rare. It is intensely distressing for the family and intensely difficult for the doctors and nurses who care for these people who may, or may not, have minimal consciousness. It raises an incredibly important problem as to the point at which the doctors are ordered by the court to withdraw the artificial nutrition and hydration. It is perhaps the most difficult of all decisions that might come before a court. In cases of permanent vegetative state it is nearly always the hospital that brings proceedings, but if a family brings proceedings, or wishes to be part of the proceedings brought by a hospital, it would be very difficult for the family to put forward a case of this extreme difficulty if it had no access to legal aid, particularly with the medical evidence that would be required.
Again, as I said on the previous amendment, this is not going to cost very much money because it is not going to happen very often, but it is a particularly important fallback position. These are terrible cases to try, as I know to my cost.
Lord Beecham: My Lords, I congratulate the noble Lord, Lord Thomas, on raising this matter and moving an amendment that could greatly assist a family, or others, in the context of the tragic and ethically challenging circumstances that he has so clearly outlined and which the noble and learned Baroness, Lady Butler-Sloss, has also addressed.
There is another set of circumstances in which the noble Lord's amendment might well be applicable. While entirely endorsing his amendment on the grounds that he has advanced, I would like to refer to the suggestion of Mind in relation to the occasional need for people in detention under the Mental Health Act to also receive legal advice concerning treatment that may be prescribed for them. The system allows for legal aid to challenge the detention of someone who is being treated in a mental health facility but not in relation to treatment that might be proffered, or indeed insisted upon, by those in whose charge a patient might find himself.
Mind has provided helpful advice to people in detention who are unable to give consent for treatment. I will quote briefly from the document it has produced which is available to those in that position. The document outlines a whole series of things, including the definitions of various matters and persons, and then it asks:
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"Can I be treated without giving consent to the treatment?".
- "if ... you have the mental capacity ... you are generally entitled to refuse it and no undue pressure should be placed on you. However, the law does allow treatment to be given to an adult without consent where the adult lacks the mental capacity needed to give consent and where certain sections of the Mental Health Act apply. If you are experiencing mental distress and are offered treatment, you need to be aware of any legal powers that could be used if you refuse. However, the powers must not be used as threats to coerce you into consenting, and if you feel this is happening"-
It suggests discussing concerns with a general practitioner and so on, and goes on to say:
"If you are under 18, the law is complex and it is best to seek specialist legal advice. It may be that you can consent on your own behalf, but this does not necessarily mean you have the same right to refuse. Others, such as your parents, guardian ... may be able to consent on your behalf".
Although the circumstances are very different and, I hope, of a less tragic character than those that have motivated the tabling of this amendment, there is a similarity in the situation of the clear need for legal advice to be available to people being detained under the Mental Health Act with regard to the treatment envisaged for them by those in whose care they find themselves. I would hope that the Minister will accede to the argument advanced hitherto by the noble Lord, Lord Thomas. In that event, the amendment would also cover the circumstances that I have outlined and which Mind has helpfully suggested.
Lord Newton of Braintree: Perhaps I may briefly intervene, having been frightened off by the fact that no one else, other than lawyers, has dared to speak this afternoon-it is just the Minister and I who share this disadvantage, disability or whatever it is. On a number of occasions I have declared an interest as chair of a mental health trust, which is no longer the case because it merged with another one on New Year's Day. I am now fancy-free as far as the NHS is concerned for the first time in about 15 years.
However, it means that I know a certain amount about this issue. It occurred to me, too, that mental capacity issues appear to be covered by this amendment. It would be very helpful if the noble Lord, Lord Thomas, could tell us whether he intended that. It would also be helpful if the Minister could tell us whether his interpretation is the same as that of noble Lords on the opposition Front Bench; namely, whether this proposal would provide additional protection or access to legal aid for the relatives of someone who has been ordered to have treatment which they think is wrong, and which the subject of the treatment cannot challenge for mental capacity reasons, but where there should be some right to raise a challenge to the professionals.
Lord Beecham: I am very grateful to the noble Lord for his intervention. On behalf of all those who have benefited from his wisdom and experience as chair of a mental health trust, perhaps I may express the
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Lord McNally: I echo that tribute to my noble friend Lord Newton. I passed him in the corridor the other day and said that he was in grave danger of becoming a national treasure but not necessarily one on whom the Government can rely.
Lord Beecham: That is what makes him a national treasure.
Lord McNally: My Lords, on the treatment issues raised by the noble Lord, Lord Beecham, and others, I am advised that the Bill covers them. The matters covered by the Mental Health Act 1983 and the Mental Capacity Act 2005 are covered in paragraph 5 of Part 1 of Schedule 1, which includes treatment issues. Amendment 53 seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. The amendment is unnecessary.
As I have explained, paragraph 5 of Part 1 of Schedule 1 already provides for legal aid to be available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the Mental Health Tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual-for example, medical treatment, including psychological treatment, life, liberty, physical safety, capacity to marry or enter into civil partnerships, capacity to enter into sexual relations, or the right to family life.
Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on mental health or capacity issues concerning medical treatment. Furthermore, public law challenges to the lawfulness of public authority actions could be brought by way of judicial review, which is in scope under paragraph 17 of Part 1 of Schedule 1. We believe therefore that this amendment is unnecessary and I hope that my noble friend will agree to withdraw it.
I am advised that in the particular case to which he referred the issue was the eligibility of the family for legal aid, because of their means. We have continued to emphasise that legal aid is means-tested in these circumstances and that our intention is to focus it on those who are most needy. I hope that, with those references and that explanation, my noble friend will agree to withdraw his amendment.
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Lord Thomas of Gresford: I am very grateful to the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Beecham, for their contribution to this discussion and thank the Minister for his reply. Do I take it that he is saying that these cases are covered subject only to the means test? I see him acknowledging that that is the case. I would like him
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54: Schedule 1, page 125, line 38, leave out "paragraph 15" and insert "paragraphs 1 to 5, 8 and 15"
Lord Carlile of Berriew: My Lords, the amendment stands in my name and that of other noble Lords. I should make it clear that I shall speak specifically to Amendment 54 and not to the other amendments in this group, which I shall leave to others. Amendment 54 relates to paragraph 17 of Schedule 1 and deals with judicial review. This is an amendment on which the background work has been done by the Bar Council. I should declare an interest as an elected member of the Bar Council-despite that, I agree with it concerning this amendment.
I welcome the Government's proposal generally to retain public funding for judicial review claims. Judicial review claims are an important part of the rule of law. They are all subject to an important qualification, which is the requirement to obtain the permission of the court for the claim to be pursued. That is not a light procedure. Your Lordships should know that when an application is made for permission for judicial review it goes through quite rigorous stages. The first stage is for the papers to be placed before a High Court judge or a deputy High Court judge-I do from time to time carry out the latter function in judicial review-where they are considered in full. In the great majority of cases, probably in about 95 per cent or possibly more, permission to apply for judicial review is refused at the papers stage. So the permission stage is quite a formidable hurdle. If permission for judicial review is refused, the matter can go for an oral hearing and there are stages thereafter. So this is quite a difficult procedure for potential claimants. It is not easy to be able to bring a case for judicial review.
However, paragraph 17 as drafted causes a difficulty which I and others are anxious to resolve and which may have arisen through inadvertence in drafting. Some of the most important judicial review cases brought in recent years have concerned the way in which public bodies have acted in relation to events giving rise to, or in the aftermath of, death or serious injury. Many of those cases have enjoyed or suffered a large amount of publicity and, indeed, debates in this House and another place. Other significant cases have concerned the exercising of powers enabling a body to seize goods or to enter land-again, a considerable intrusion with the rights of citizens on the face of it.
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The Bar Council and I are concerned that the current drafting of Schedule 1 fails to make it clear that the relationship between paragraph 17 and the exclusions in Part 2 of Schedule 1 leave a fair and level playing field. A number of the exclusions in Part 2, including paragraph 8, which refers to "breach of statutory duty", could on the face of it remove the scope of legal aid from a wide range of claims for judicial review. The following are examples that may be excluded. A challenge to a decision by a public authority to demolish private property, for example as part of a planning procedure, would be excluded, as would a judicial review to enforce the performance of a statutory duty such as housing a homeless child under the Children Act-I can tell the Committee that such applications are very frequent leave claims, at least permission claims in judicial review. A challenge to a hospital that refused to provide emergency life-saving treatment would be excluded-such claims sometimes arise in relation to elderly people or even in relation to people to whom treatment is denied because, for example, of a history of smoking. Also excluded would be a judicial review into a decision not to hold an inquiry into the violent killing of a young offender. Those are all examples of cases of real importance.
I hope that the Minister will say either that the intention is not to exclude any of those categories, as a statement to that effect would be of great utility in the event of ambiguity being perceived by the courts in such matters, or that he will say, preferably, that as there may be some ambiguity, the Government wish to clarify the matter by producing their own amendment for Report so that there is no lack of clarity or ambiguity. The simple way of doing that would be to remove any doubt by disapplying the exclusions in paragraphs 1 to 5 and 8 of Part 2. This is an important matter. I do not propose at this stage to spend more time on it because I hope that we will hear a helpful response from my noble and learned friend. I beg to move.
Lord Thomas of Gresford: My Lords, I speak to Amendments 55 to 59 which are in my name and that of other noble Lords. I recall when I first started as a lawyer there were some 400 to 500 certiorari applications every year. It was a very limited field but under the guidance of the noble and learned Lord, Lord Woolf, and others, the field of judicial review has expanded very considerably.
However, there is a problem. Unmeritorious claims are undoubtedly brought before the court in immigration cases, which take up a great deal of time but are not
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The purpose of Amendment 55, which I have put forward, is to keep the scope of judicial review as it is under paragraph 17 but to remove the restrictions on immigration cases that are set out in sub-paragraphs (5) to (7). The immigration-specific exclusions that are now contained in that paragraph were not part of the original consultation. When the consultation was first put forward in November 2011, the Government said, quite robustly, that they regarded judicial review as a particular priority because:
"These proceedings ... represent a crucial way of ensuring that state power is exercised responsibly".
In their response to the consultation, the Government said, in relation to unmeritorious judicial review applications, that:
"The current criteria governing the granting of legal aid in individual cases would generally preclude such funding".
So, on the one hand the Government are saying that they think judicial review is very important in making sure that the UK Border Agency acts properly, and on the other hand they are saying that the granting of legal aid will require the passing of the merits test, which will generally preclude such funding. That was their attitude then; however, when they produced the Bill, they excluded these cases, which they acknowledge are crucial to ensuring the responsible exercise of state power. I am looking to hear an explanation from the Minister of why, between the consultation and the publication of the Bill, it was thought necessary to exclude immigration cases in that way.
Amendment 59 is intended to retain legal aid for an immigration judicial review where a previous appeal or judicial review has been successful or has not been brought with legal aid. Under the Bill, a previous appeal or judicial review proceedings will prevent or exclude legal aid for any subsequent immigration judicial review applications-whatever the merit of subsequent applications and whatever the result in the previous appeal or judicial review proceedings. Whether the earlier proceedings were successful, or whether the UK Border Agency has failed to act on the previous decision or it is flouting the decision, it is not possible to have legal aid to bring a second judicial review. The Bill will remove legal aid generally for all non-asylum immigration matters. This means that those unable to pay for legal advice and representation will in immigration cases not be able to obtain legal aid for advice about their immigration situation or representation in dealing with the UK Border Agency or any immigration appeal.
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Amendment 56 has the purpose of retaining legal aid for an immigration judicial review when there has been no previous appeal. Sub-paragraph (6)(a) excludes legal aid for a subsequent judicial review of removal directions if a decision to remove has been made. The Government have suggested that any challenge to the earlier decision to remove can be dealt with on appeal, but a decision to remove does not of itself entitle a person to appeal before he or she has left or been removed from the United Kingdom. Therefore, on the Government's own analysis, a decision to remove ought not to be a trigger for excluding legal aid for any judicial review application because it does not provide an opportunity for any oral hearing before a tribunal judge prior to the proposed removal.
Amendment 57 deals with a defect in the Bill. Sub-paragraph (6)(b) refers to decisions to refuse leave to appeal at a stage where such decisions cannot be made at the point of appeal to the First-tier Tribunal. Appeals at this stage are brought as of right; there are no leave-to-appeal decisions, so sub-paragraph (6)(b) is defective and should be removed.
Finally, Amendment 58 would align the preservation of legal aid for judicial review in connection with refusals of asylum with the scope of asylum as provided at paragraph 26(1) of the schedule. The Bill currently preserves legal aid in relation to fresh asylum applications but only in so far as the EU procedures directive applies. This is potentially problematic because that directive refers to an application for asylum as,
Other EU directives and UK domestic law treat other applications as applications for protection where the refugee convention may not strictly apply but the level of harm, such as torture or execution, which the individual faces is no less. In 2010, the UK Border Agency made 3,488 initial decisions to grant asylum under the refugee convention, compared with 91 grants on non-refugee convention grounds. While the cases where the distinction is critical are few, the exclusive reference in the sub-paragraph to the EU procedures directive is likely to cause confusion and litigation. The directives should be read altogether as one body of law and the relevant protection in relation to fresh asylum applications should not be limited to refugee convention applications. The seriousness of the cases involved is indistinguishable. By aligning the provision in sub-paragraph (7) with paragraph 26(1), that distinction will be closed, and it would better meet the Government's stated intention to prioritise asylum, to avoid the potentially complex and expensive litigation and avoid the bureaucracy that likely will be required to operate the exceptional cases scheme. Given that the affected cases are relatively few, there is little financially to be
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As I said to the noble Lord, Lord McNally, we are here to help, and we believe that these amendments would improve the structure of the Bill.
Lord Bach: My Lords, the Committee should be grateful to the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, for moving and speaking to their various amendments in this group. From this side of the Committee, we unreservedly support the series of amendments that make up this group. They are important amendments.
I have two things to say to start with. Apart from supporting the amendments, which is the first thing I have to say, the second is to say how much we support the Government in having kept judicial review in scope in general terms as part of legal aid. It plays an important role. However, they seem to intend to be too restrictive on immigration matters. The position of the Official Opposition on legal aid for immigration matters is clear; we believe that immigration law should remain within the scope of legal aid. It is an important, if qualified, check on poor decision-making by the UK Border Agency and other agencies, and it ensures that immigrants, many of whom are vulnerable, disorientated and scared, are able to assert their rights by accessing what may be a confusing new judicial system. Moreover, it keeps the machinery of justice working efficiently as well.
We regret that the Government have carved out immigration law from the scope of legal aid and judicial review, which are important areas, save, of course, where their advisers-and here I have no doubt that it was experienced and leading counsel-told them that it would be in breach of their convention obligations. Asylum cases remain pretty much in scope, although not entirely, as the noble Lord, Lord Thomas of Gresford, has just pointed out. Judicial review was an area that we thought likely to be uncontentious. The Government themselves have said, as we have said, that judicial review is the safeguard against mad or bad decision-taking. The test is not an easy test to meet, if you are an applicant, as the noble Lord, Lord Carlile, showed very clearly a few minutes ago when he referred to the Wednesbury test.
It is worth reminding the Committee what the three limbs of that test are: that the public authority, in making the decision, took into account factors that ought not to have been taken into account; that it failed to take into account factors that ought to have been taken into account; or that the decision was so unreasonable that no reasonable authority would ever impose it. In other words, as stated in another leading case, it must be,
- "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".
Just to state those words shows what a high hurdle has to be reached for someone to succeed in a judicial review against the state.
Of course, such worrying decisions are occasionally taken by government or emanations of government. It happens, and the fact that there is a remedy in our law
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