Domestic Abuse Bill — House of Lords, 2021-02-03
Topic: Law and Crime
David Wolfson (Conservative, Centre-right): My Lords, I am grateful to the noble Lord, Lord Marks, for setting out the rationale for these amendments. As he said, I deferred my comments on the particular point of an advocate’s duty to this group because his amendments directly raise that issue. I am grateful to him for the discussions we had about this matter, as indeed we have had about several matters arising from the Bill Amendments 122 and 127 would have the same effect in relation to a qualified legal representative appointed by the court to conduct cross-examination in family and civil proceedings respectively. It is the Government’s intention that such a court-appointed representative is not responsible to any party. They are, in effect, appointed by and responsible to the court in relation to their conduct of the cross-examination, having regard to guidance issued by the Lord Chancellor in connection with this role under what we intend should become Section 31Y(1) of the Matrimonial and Family Proceedings Act 1984 As I think the noble Lord, Lord Marks, accepts, the amendments would alter fundamentally the representative’s role by making them responsible to the party who has been prohibited from carrying out such cross-examination. While the tabled amendments contain safeguards to counter the resulting tension between being responsible to the prohibited party on the one hand and needing to protect domestic abuse victims on the other by requiring the representative to have regard to protective directions issued by the judge, this does not affect the Government’s view that, as a matter of principle, the representative who has been appointed by the court should not be responsible to the party. That is particularly the case when that party could have, but has not, appointed his own lawyer. Had he done so, a court-appointed lawyer would not have been required and the lawyer appointed by him would have owed him a duty Therefore, the Government do not want this to become a client-lawyer relationship. The advocate is appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in cases where the party is prohibited from conducting the cross-examination by themselves. Altering this and introducing such a relationship between the party and the advocate would, in the Government’s view, be a mistake The rules pertaining to the advocate scheme will be set out in statutory guidance and relevant procedural rules. Consistent with what I have been explaining to the Committee, the focus will be on ensuring that the function of a cross-examination is carried out—that the witness is questioned on the evidence that they have provided. Before these provisions are commenced, we will work with relevant stakeholders to develop and finalise statutory guidance, to be issued by the Lord Chancellor, for the appointed legal representatives to assist them in discharging this role. We will work with the appropriate rule committees to develop suitable court rules and practice directions to provide a clear structure and process for the operation of these provisions For those reasons, we take issue with the proposal in the amendment. Although I hear what the noble Lord, Lord Marks, said about SIAC and court-appointed advocates there, those are completely different circumstances and there is no read-across from SIAC to these provisions. The way that the Bill is set out reflects the Government’s deliberate intention and the clauses have been designed with this in mind The framework for the provision of publicly funded legal representation is set out in the LASPO Act. While I have listened carefully to the arguments made on this point, both today and in previous discussions, I do not agree that we should mix the different purposes of LASPO and these clauses as has been proposed. As anticipated by the noble Lord, Lord Marks, I refer to the review that I mentioned in the last debate Amendments 123 and 128 relate to the provision of legal aid. Legal aid is available for family cases where there is evidence of abuse, subject to domestic violence, or child abuse evidence requirements, and the relevant means and merits tests. We have expanded the acceptable forms of evidence and removed all time limits on providing that evidence. As I have said, we are also reviewing the means test. The Government are clear that victims of domestic abuse must have access to the help that they need, including to legal aid. The review of the means test is assessing the effectiveness with which that test protects access to justice. As I said in the last debate, we are specifically considering the experience of victims of domestic abuse. I will not repeat the other points I made in that context in the previous debate However, legal aid may also be available through the exceptional case funding scheme, where a failure to provide legal aid would breach or risk breaching the ECHR or retained enforceable EU rights. As I have explained, the Bill includes provisions that give the court a power, in specified circumstances, to appoint a publicly funded legal representative to conduct cross-examination. Where a prohibition on cross-examination applies, the court would first consider whether there are alternatives to cross-examination and invite the party to appoint a legal representative to conduct the cross-examination. In circumstances where the party does not, the court considers whether it is in the interests of justice so to appoint. Therefore, publicly funded legal representation is intended to conduct the cross-examination, but not to go beyond it. That is the sole reason why the advocate is appointed In that context, we must appreciate the need to protect against unnecessary expenditure of public funds or alteration of the legal aid regime without a wholesale and proper examination of the ramifications of doing so. In circumstances where this provision for a publicly funded advocate is put in the Bill for a limited and specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of legal aid provisions in Committee I fear that I may not have been able to persuade the noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite him to withdraw the amendment.