Vote on domestic violence amendment lost

Losing votes is not like losing football matches. Both can turn on luck or chance, but no matter how passionate a team and its supporters are, losing a match is ultimately part of the game, whereas much more can hinge on losing a vote.

Last night Lady Scotland, the former Attorney-General, mounted an impassioned plea in the House of Lords for the government to extend the grounds on which victims of domestic violence can claim legal aid. The vote on her amendment was a draw (238 to 238) which means in accordance with parliamentary procedure that it was lost. If her amendment had succeeded, the government would have been forced to amend the Legal Aid, Sentencing and Punishment of Offenders Bill (known as the Legal Aid Bill).

The government has made significant concessions on domestic violence in the debate on the Legal Aid Bill. It moved the time limit on evidence of domestic violence from one to two years but, as Lady Scotland says, imposing a time limit shows a complete misunderstanding of domestic violence and how victims, usually women, will suffer for some years before finally deciding to take action. The government made concessions on the criteria that will be accepted to claim legal aid in a domestic violence case, including entering a refuge, but as Lady Scotland argued:


It is important that we look at the places where applicants go: it is not just to refuges. For example, we know that many councils outsource their provision of outreach services to [Citizens Advice Bureaux] or local third sector organisations, knowing that they can be more effective at satisfying needs than state social services. Those agencies need to be included.

She also argued that the gateway criteria for legal aid do not include information from police over attendances at the matrimonial home. Those with knowledge and experience of dealing with domestic violence all argue that while police may be called many times it is often the case that the victim will not press charges. At the moment the gateway does not include information from the police that there have been a number of attendances at a matrimonial home. On this Lady Scotland said:

The noble Lord will know that many victims do not press the matter on to charge or to conviction. The police may have been called many times, but if there is not a charge or a caution, the applicant-victim will not be able to rely on that for legal aid.

In response to Lady Scotland’s argument the minister Lord McNally listed the initiatives and cash the government is devoting to services to tackle domestic violence: 'One thing that I am most proud of about this government is that we have put funding into domestic violence issues in a very detailed way,' he said. LAG would argue that the small changes to the proposed legislation which Lady Scotland argued for would have ensured thousands of people could seek legal protection instead of being left without help.

The government confirmed last night its previously announced concession on mesothelioma cases, an industrial disease caused by exposure to asbestos. This is the last now of a number of concessions on the Legal Aid Bill which the government has been forced to make. The bill is expected to become law next week.

Votes in the Lords can come down to a combination of luck and circumstances. When Lady Scotland’s motion was debated on Monday this week it won by 239 to 236. More peers opposed to the government's plans could have attended last night, but equally more government peers could have been present, prepared only to follow their whips and not listen to the arguments. What is surprising with the vote last night and throughout the debates in the Lords, is the large number of Liberal Democrat peers who cravenly toed the government line against, LAG suspects, their consciences.

We cannot help but reflect that such crucial votes as last night's should boil down to more than a combination of unthinking party discipline and who decides to turn up, as there is so much more at stake than which side wins.

Last-ditch concessions on Legal Aid Bill

Justice Secretary, Ken Clarke, announced further concessions on the Legal Aid, Sentencing and Punishment of Offenders Bill, known as the Legal Aid Bill, last night in the House of Commons, but if the bill becomes law next week many thousands of people will still lose out on access to civil justice.

Campaign organisations including LAG, Rights of Women (ROW) and the National Federation of Women’s Institutes had argued that the government should adopt the Association of Chief Police Officers' (ACPO) definition of domestic violence. The ACPO definition covers, 'any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults ... who are or have been intimate partners or family members, regardless of gender and sexuality'. Clarke confirmed last night in the Commons debate on the Lords amendments to the Legal Aid Bill that the government would be incorporating this definition into the bill.

Of greater significance was the government’s agreement to widen the criteria for victims of domestic violence to qualify for legal aid. Clarke confirmed in the debate:

' … we intend to accept as evidence — we will reflect this in regulations — the following matters: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals'.

LAG welcomes what we believe is a significant concession from the government which will ensure justice for many victims of domestic violence. We would, though, highlight the concern raised by ROW that the regulations need to include those who have accessed specialist domestic violence services. Many women are turned away from refuges due to lack of space. A ROW survey undertaken on 16 June 2011 showed that 224 women were refused refuge places: 163 because there were no beds available; 13 because they had no recourse to public funds and 48 for another reason such as complex needs. Many more women who are victims of domestic violence receive help from other services than are admitted to refuges. They need legal assistance as well and the regulations need to reflect this.

Clarke also announced a small concession on welfare benefits advice in response to the amendment which had been tabled by the Liberal Democrat MP Tom Brake. Clarke said that he would bring forward regulations to allow legal aid in cases in which a point of law was being argued before a welfare benefits tribunal, but this will only be relevant in very few cases. LAG believes most of the estimated 135,000 people who currently receive advice on benefits through legal aid will still lose out if the bill is passed.

The Legal Aid Bill will return to the Lords next week. LAG is urging peers to seek assurances on what criteria will be included in the regulations on domestic violence. Also, the Lords made eleven amendments to the bill, which included amendments on issues such as the compulsory telephone gateway. These have been glibly ignored by the Justice Secretary. The government is up against a deadline to get the bill through by the end of this parliamentary session. Peers need to push for more concessions.

Clarke plays hardball with Lords

Despite huge opposition to parts of the Legal Aid, Sentencing and Punishment of Offenders Bill (known as the Legal Aid Bill) from crossbench and opposition peers, the Justice Secretary Ken Clarke has decided to reject most of the 11 amendments made in the Lords stages of the bill.* Two partial concessions have been made by the government on independence in decision-making on entitlement to legal aid in individual cases and the availability of legal aid in appeals on welfare benefits to the Upper Tribunal and other courts.

It is believed that peers are likely to oppose the government strongly over its rejection of moves to set out the evidential criteria required for victims of domestic violence to qualify to claim legal aid. This includes a proposal by the government to time-limit admissible evidence of domestic violence to 12 months. In the debate in the House of Lords, Baroness Scotland argued that evidence such as disclosure of domestic abuse by a victim to a doctor or statutory agency should be sufficient to claim legal aid.

In the LAG-commissioned report from the National Federation of Women’s Institutes on legal aid and domestic violence, a woman who took part in the research said:

'I’ve never reported any incidence of violence with my ex-partner, the only time that I started reporting it is when I got pregnant. And social services were involved so I reported it to them. I never saw the police as an option because I didn’t think they could help abused women.'**

According to research from the campaign group Rights of Women, at least 46 per cent of domestic violence victims who currently qualify for legal aid will be ineligible under the government’s proposed evidence gateways.***

LAG welcomes the government’s decision to allow legal aid in welfare benefits cases before the Upper Tribunal and other higher courts. We believe the government was forced to make this concession due to pressure from Liberal Democrat backbench MPs concerned about the impact of the Welfare Reform Act (WRA). However, we do not believe it is enough, as there are only a few hundred such cases each year but there are likely to be thousands of appeals to the First-tier Tribunal, particularly with the introduction of changes under the WRA. An already creaking tribunal system is likely to be swamped under a deluge of claims with benefit claimants unable to get initial advice on their cases.

The issue of independence in decision-making is something LAG has pursued from the outset of the government's planned reforms of the legal aid system. We believe the amendment proposed by the Justice Secretary, guaranteeing the independence of the Director of Legal Aid Casework, is the very minimum required to prevent political interference in decisions on entitlement to legal aid. We would have preferred an independent tribunal system and believe this may still happen if ministers do not resist the temptation to meddle in individual cases.

The Legal Aid Bill goes into the ping-pong stage between the Lords and the Commons tomorrow. Kenneth Clarke may find that peers have taken umbrage at his high-handed rejection of much of their revised bill.

*See: Consideration of Lords amendments.

** Legal aid is a lifeline: women speak out on the legal aid reforms, October 2011, available on: LAG's website.

*** Rights of Women and Welsh Women’s Aid, Evidencing domestic violence: the facts, January 2012, available on: the Rights of Women website

Legal Aid Bill back in the Commons

The Legal Aid, Sentencing and Punishment of Offenders Bill, known as the Legal Aid Bill, returns to the House of Commons next Tuesday (17 April). A total of eleven amendments were made to the bill in the Lords, nine of these to the section dealing with legal aid.

When the Legal Aid Bill was completing its passage through the Commons last year, ten Liberal Democrat MPs rebelled against the government, supporting an amendment on legal aid for complex benefits cases tabled by the Labour MP, Yvonne Fovargue. While the vote on this amendment was lost in the Commons, a similar amendment proposed by the Liberal Democrat peer, Baroness Doocey, was successful in the Lords. LAG has written to government MPs to urge them to support the bill as amended by this and the other changes introduced in the Lords.

We view the following issues reflecting amendments made by peers as essential:

1) The Welfare Reform Act will have a significant impact on claimants, particularly disabled people, and LAG believes it is fair that people should be able to access specialist advice on benefits in order to challenge government decisions, particularly at a time of such far-reaching changes.
2) Cases involving children should continue to be covered by the legal aid system.
3) Plans to filter cases through a telephone gateway should be dropped, as the people who qualify for legal aid are the least likely to use such services.
4) The criteria for qualifying for legal aid should ensure the protection of victims of domestic violence.
5) Decisions on entitlement to legal aid in individual cases should be made independently from ministers.

While not going as far as outright rebellion when the bill was last in the Commons, some Conservative and Liberal Democrat MPs, such as Helen Grant, the Conservative MP for Maidstone and The Weald, were critical of the government’s proposals. Grant expressed disquiet over the availability of legal aid in domestic violence cases, arguing that the definition of domestic violence was inadequate and that the qualifying criteria to be granted legal aid were too restrictive. If the government were to ignore the Lords' amendments on issues such as this, it might risk a rebellion among previously loyal backbenchers.

Another danger for the government is a protracted ping-pong stage between the House of Lords and the House of Commons as peers might choose to dig their heels in if the government rejects their amended bill. The Legal Aid Bill is the last significant piece of legislation in this session of parliament and the government will want it to become law before the Queen's Speech, which is expected early next month.

LAG is urging campaigners to write to their MPs. Please follow this link from the Justice for All website to write to your MP.