Legal Aid, Sentencing and Punishment of Offenders Bill

Kate Green Excerpts

Tuesday 17th April 2012 Commons Chamber

[Mr Clarke]

Let me begin with the domestic violence gateway. The ACPO definition is what the Labour Front-Bench team was originally concentrating on. We have to have a definition because we are talking about qualifying for the public funding of legal aid in certain cases. We have moved a lot on domestic violence and we are moving again in response to the Lords’ debate, as I shall explain in a moment. First, though, let me make it clear, because I do not think it has always been clear to people in either House, exactly what we are talking about. It was never in doubt that there would be legal aid for the protection of victims of domestic violence. Domestic violence is an issue that this Government, like any Government, including the previous one, take extremely seriously. As now, it was always intended that legal aid would remain available for victims of domestic violence who were trying, for example, to obtain protective injunctions to defend themselves in such cases. In domestic violence cases there is no means test so even the super-rich can obtain legal aid if they are seeking an injunction for reasons of domestic violence, although I hope that not too many of them will.



We are doing quite a lot of other things. The Home Office is for the first time providing more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services, and £900,000 each year to support national domestic violence helplines and a stalking helpline. Our Department is now contributing towards the funding of independent advisers attached to specialist domestic violence courts. We are giving a total of £9 million for that purpose up to the end of 2012-13. We are allocating £3 million a year to 65 rape crisis centres and opening new ones. Domestic violence protection orders are being piloted in three police force areas.  We have announced a one-year pilot which will take place from this summer to test out a domestic violence disclosure scheme, known as Clare’s law.

I mention those things so that we can have a debate which, with great respect to their lordships, is not on the same basis as the part of the Lords debate that I listened to—that people did not realise the seriousness of domestic violence as a social issue in our society. We all do. The Bill never challenged that. It is all part of a pattern of services being provided by this Government, through which we think we are strengthening the support for victims of domestic violence.

What we are discussing here is the special provision that we are also making to provide legal aid to people who have been recent victims of domestic violence, so that when they are dealing with their abuser in court on other issues—ownership of the former matrimonial home, maintenance, access to property—they have access to legal aid. In such cases, particularly the private family law cases and the children’s cases, we are trying to shift away from so much adversarial litigation. Having lawyers on both sides arguing about custody and access to children does not always lighten the tensions or resolve the dispute, as most Members of Parliament are only too well aware from their constituency surgeries, so we are moving towards mediation, which is cheaper. That is why some of the lobbyists do not like it, with the result that in cases where it does not work, they are arguing for legal aid to continue to be available.

We have conceded the case that after a recent episode of domestic violence, the victim on her own may not want to deal, even through mediation, with her abuser. How do we define domestic violence for that purpose? That is an important but secondary purpose, as the case will not be about domestic violence. In such a case, what definition of domestic violence should be used for the person to qualify for legal aid? That is what the argument about the definition in both Houses has been about all the way through.

[Kate Green (Stretford and Urmston) (Lab)]

The Lord Chancellor mentioned that it will still be possible to obtain legal aid to get an injunction when there is domestic violence. Will this not be a cost-accumulating measure, as women will first go to get an injunction in order to have evidence to be legally aided for the case of domestic violence?

[Mr Clarke]

Such women will not get an injunction if it turns out that there is no reasonable ground for giving it and they are not in imminent fear of domestic violence. We will give them legal aid because we think it is important that these issues are tested in cases where legal advice is available. If women do not get the injunction, they will not get the legal aid later.

--- Later in debate ---

[Mr Djanogly]

As I said, this is a question of what lawyers get paid. I am in no way assessing the vulnerability of the individuals whom the hon. Gentleman mentioned.

I point out to the hon. Gentleman that significant steps have been taken in recent years to lower the barriers to bringing compensation claims for these disastrous diseases. A fast-track procedure for mesothelioma cases has been introduced in the High Court. Over the past few years, various legal changes, including primary legislation such as the Compensation Act 2006 and judgments of the Supreme Court, have removed many of the hurdles for sufferers of respiratory diseases in bringing claims.

The legal climate in which such cases are brought has been transformed in recent years. Judgments of the Supreme Court have removed many hurdles, and a judgment only last month means that victims of this dreadful disease who are able to trace an insurer will now be paid and not miss out on compensation. As I said, a fast-track procedure has been introduced to ensure that claims are dealt with as quickly as possible.

A key outstanding barrier is identifying the employer’s liability insurer when an employer no longer exists, and the Department for Work and Pensions continues to work with stakeholders to see what more can be done to address that. Overall, however, cases are much less difficult to undertake than in the past, and there is no reason to believe that legal firms will stop bringing them, even under the new arrangements, or that they will be particularly expensive.

[Kate Green]

Does the Minister not accept, though, that some cases will now simply go unrepresented and unpursued, and that victims will instead have to rely on the Government’s own compensation scheme, in which the average payment is £16,000? This change will be an expensive choice for the Government, because it will lock people out of access through the courts.

[Mr Djanogly]

Decisions are made about such cases now, and even under the existing system, if there are large sums involved, ATE insurance companies want to know the likelihood of losing. A lawyer also has to make such an assessment. As things stand, the balance is not right, and we want to rebalance the situation.

Partly as a consequence of what I have said, I do not believe we should accept the view that critics sometimes advance that our reforms will leave victims of this terrible disease out of pocket. It is true that under our plans individuals will pay legal costs out of their general damages. Crucially, though, damages for future care and losses are protected, and general damages are being increased by 10% to offset a success fee capped at 25%. It is of course entirely up to the lawyer whether any success fee is taken from a claimant’s damages at all.