Wednesday 18 April 2012 by Catherine Baksi
MPs overturned nearly all of the changes made by peers to the government's proposed legal aid reforms, but in a key concession agreed to widen the evidential criteria required to grant legal aid to victims of domestic violence.
In last night's debate on the Legal Aid, Sentencing and Punishment of Offenders bill, justice secretary Kenneth Clarke set out a wider list of evidence that will be accepted as proof of domestic violence and to entitle victims to legal aid to take civil cases against their abusive partners.
He said the government would now accept evidence from GPs or other medical professionals, social workers and domestic violence refuges, a police caution for domestic violence and an undertaking given to a court by the other party in lieu of a protective order or injunction.
Other items on 'a fairly formidable list' include a non-molestation order, occupation order, forced marriage protection order or other protective injunction. Clarke also agreed to double the time limit from 12 months to 24 months to allow a party to bring forward evidence to establish domestic violence.
The government had already agreed to accept the wider definition of domestic violence used by the Association of Chief Police Officers to include 'any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other'.
The government won by 302 votes to 243 a vote on Clarke's position that these changes should be set out in regulations rather than in the bill. In a five-hour debate, the government overturned by 300 to 252 a Lords amendment that would have secured a statement of principle in the bill to impose a duty on the Lord Chancellor to provide access to legal services.
Justice minister Jonathan Djanogly said the government could not accept the change, which would prompt legal disputes and judicial reviews. But his Labour shadow Sadiq Khan said the change would cost nothing but would underline an important constitutional principle.
The Commons agreed without a vote a government amendment to require the Lord Chancellor to ensure the director of legal aid casework acts independently of ministers and Lord Chancellor. This replaced a amendment agreed by peers. Djanogly said: 'I am aware that the question of directorial independence was one that exercised the other place considerably. It is because we agree that that is a vital issue that we are happy to put the matter beyond doubt.'
However, a Lords amendment against a mandatory telephone gateway was voted down by 300 to 248. Djanogly said the amendment made by the Lords would 'weaken a key measure to modernise the system and bring it up to date'.
He said: 'The aim of the telephone gateway is to route access to legal aid in the first instance by the phone. That is not only much more efficient, enabling calls to be properly triaged, but simpler to access and generally of higher quality.' But he promised there would be a review of the implementation and operation of the mandatory gateway.
The government won by 288 to 246 a vote to overturn a Lords' change that would have retained legal aid for welfare benefits appeals. Clarke argued that welfare benefits matters 'generally should not require legal advice' saying they can be adequately dealt with by organisations such as Citizens Advice.
MPs also voted by 294 votes to 250 to reject a change made by peers that would have provided legal aid for all children under the age 18.
The Commons did not vote on a separate amendment that would have retained legal aid for clinical negligence cases involving children. MPs accepted Clarke's view that the amendment was unnecessary, as 96% of the most serious cases would be covered by the government's concession to provide legal aid for obstetric cases. Other cases, he said, would be covered by the exceptional funding scheme.
The government also overturned the two amendments made by peers on Part 2 of the bill. They would have exempted victims of industrial diseases such as mesothelioma from the Jackson civil litigation reforms, and ensured that success fees and after-the-event insurance premiums continued to be recoverable from the unsuccessful defendant in such cases.
Djanogly said: 'The current regime of no win, no fee conditional fee agreements was meant to promote access to justice but has frequently ended up as something of a racket allowing risk-free litigation for claimants, inflated profits for legal firms, and punitive additional costs for defendants.'
On amendment 30, specifically relating to respiratory disease cases, the government won by 292 votes to 256, and the more general vote on industrial disease by 297 to 252.
Commenting on the outcome Law Society president John Wotton said: 'The House of Lords amendments, while they would cost the government very little, improved the bill substantially and would provide legal aid for cases involving some of the most vulnerable individuals.
'The government's concession on domestic violence, while falling short of our proposal, is to be welcomed. We remain to be convinced that the government's suggestions with regard to welfare appeals will make much practical difference,' he said.
He added: 'I trust that, notwithstanding the government's outright rejection of the remainder of the Lords' amendments, peers will reinsert their amendments when the bill returns to the Lords next week and the government will finally be persuaded to accept them.'
The bill will now return to the Lords, beginning the parliamentary process known as ping pong until the two Houses can agree on the contents. It is expected to get Royal Assent in the current parliamentary session, which ends in May.