Clarke makes two major concessions on legal aid bill

The coalition government has, for the first time, made major changes to the drastic programme of cuts contained in its legal aid bill. The bill had been amended 11 times by the House of Lords.

Justice secretary Ken Clarke told the Commons last night that the government would adopt the Association of Chief Police Officers definition of domestic violence, as campaigners had demanded.

More importantly, he said victims would not have to show evidence of a criminal prosecution for domestic violence before claiming legal aid. Evidence could also include admission to a refuge, a letter from a GP or social worker, an undertaking made by the perpetrator or a police caution he or she might have received.

Clarke said the government had produced a 'fairly formidable' list of things it was prepared to accept as evidence and 'responded pretty generously because of our concern about domestic violence'.

In a separate important concession on welfare benefits, he said appeals on a point of law to upper tribunal, Court of Appeal and Supreme Court would continue to be covered by legal aid.

The justice secretary said appeals on a point of law to the lower tribunals could also be covered, if MoJ officials could find a way of ensuring that 'somebody other than the claimant or their lawyer' certified that a point of law was involved.

'We did not wish to argue that in such cases, when the whole thing is a point of law, the applicant himself or herself should be expected to represent themselves without legal assistance, so we have tried to define those cases in which legal advice should certainly be available.'

Clarke's concessions aimed to tackle what were potentially the most politically troublesome of the Lords' amendments.

Baroness Scotland's amendment on domestic violence was passed by the Lords last month by a majority of 238 votes to 201 (see solicitorsjournal.com, 13 March 2012).

Two amendments, tabled by Lib Dem peer Baroness Doocey and shadow justice minister Lord Bach, would have retained legal aid for complex welfare benefits appeals to the upper tribunal, Court of Appeal and Supreme Court.

Lib Dem MP Tom Brake, who had earlier orchestrated a mini-rebellion on the issue in the Commons, said before yesterday's debate that he would move for a second time an amendment to keep complex benefits cases in scope.

Earlier the government had accepted that the independence of the new director of legal aid casework at the MoJ, following the abolition of the LSC, should be guaranteed.

However, MPs rejected seven other Lords' amendments. During the report stage debates, the Lords passed an amendment providing for a statement of principle that the bill aimed to ensure access to justice and legal aid for expert reports in medical negligence cases.

Two further amendments would have allowed successful claimants in respiratory disease cases to recover success fees and premiums and in employer's liability cases involving industrial diseases.

Peers removed one of the fundamental features of the bill, the insistence that civil legal aid clients should access advice through a telephone gateway and, at third reading, passed amendments ensuring that children under 18 could continue to receive legal aid.