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Clarke offers concessions on legal aid

Peers to decide whether to bring back amendments this week

23 April 2012

Justice secretary Ken Clarke has offered opponents of the legal aid bill significant concessions on domestic violence and welfare benefits.

Peers will decide this week whether to bring back at least seven amendments, which were not dealt with by the concessions, of the 11 they passed at the bill’s report stage and third reading.

Clarke told the Commons last week 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 now 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 described this as a “fairly formidable” list of things the government was prepared to accept as evidence and said it had “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 the upper tribunal, Court of Appeal and Supreme Court would continue to be covered by legal aid.

The justice secretary said cases involving points of law in the lower tribunals could also be covered, so long as 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.

His 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 the Commons debate that he would move for a second time an amendment to keep complex benefits cases in scope.

It is understood that he will discuss with Clarke this week whether his concerns about welfare benefits cases have been met.

Clarke said 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 failed to address seven other Lords’ amendments. During the report stage debates, the Lords passed an amendment providing for a statement of principle in the bill that it aimed to ensure access to justice and another allowing 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, along with employers’ 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, amendments ensuring that children under 18 could continue to receive legal aid.

Steve Hynes, director of the Legal Action Group, described the concession on domestic violence as a “good one” despite the devil being in the detail.

He predicted that peers, such as Baroness Butler-Sloss and Baroness Scotland, would push for clarity on the issue.

Hynes said the concession on welfare benefits was important in that “a lot of points of law cases are likely because of changing legislation”.

However, he said that average benefits claimants needed “simple advice on their rights” which were currently funded by legal help.

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Legal Aid