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Hints of concessions on legal aid bill, but nothing tangible

19 January 2012

Ministers in the House of Lords have suggested that the government will consider making concessions on the legal aid bill when it enters its report stage at the end of next month, or in March.

During the committee stage debates this week, Lib Dem ministers Lord McNally and Lord Wallace softened their tone and appeared more conciliatory, without announcing any tangible changes.

Conservative peer Lord Faulks said the bill would allow the Lord Chancellor to remove services from the scope of legal aid, but not to restore them.

He said the Lord Chancellor might want to restore legal aid if the economy improved or if there were “some egregious examples of market shortfall or the establishment of legal aid deserts”.

Lord Faulks said the House of Lords constitution committee had stated that if the Lord Chancellor had the power to “take away by delegated legislation, he must also have the power to provide”.

Baroness Butler-Sloss, a crossbencher, said it was “absolutely astonishing” that the government should have an arrangement where “they can delete legal aid but they cannot bring it back”.

Labour peer Baroness Mallalieu said it was “almost certain that it will be shown in due course that legal aid was essential for the smooth running of our benefits systems, our legal system and our society.

She went on: “I suspect that there will be a public sense of unfairness when the extent of the proposed cuts is more widely known. I suspect that at that stage there may need to be, as others have already said, some rapid amendment to the existing system.”

Lib Dem peer Lord Phillips put it even more strongly, saying that, if the bill went through as it was, “scandals will arise, which the government will want to rectify swiftly”.

In response, Lord McNally said a number of “telling points” had been made and “strong and experienced legal opinion has advised against this one-way street which is built into the bill”.

He agreed that there was a need for “flexibility and future-proofing”.

“The noble baroness, Lady Kennedy, asked whether the aim was to see legal aid wither on the vine,” he said. “That is certainly not our intention.”

Later in the debate, when peers discussed the removal of legal aid for medical negligence, Lord Wallace said the government did not intend that poor people should “pay up front for their necessary expert reports”.

He said the government was considering how the NHSLA could commission directly and share reports on liability and expected the ATE insurance market to “adapt to the new arrangements”.

Lord Wallace said a working party had been set up to examine recoverability of ATE premiums, which would only be allowed in medical negligence cases, and “ensure that premiums for expert reports reflect the risks involved”.

Lord Wallace added: “I know this is an area to which we will return.”

In last night’s debate on the legal aid bill, Lord Wallace said the government agreed that a “technical amendment” was needed to make sure that all special educational needs (SEN) matters remained within the scope of legal aid.

He said that the government had altered its position on SEN after the consultation on the legal aid green paper, so that the bill included provision for these cases.

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Legal Aid