17/04/2012 16:50 BST | Updated 18/04/2012 09:34 BST

Government Makes It Easier For Victims Of Domestic Violence To Claim Legal Aid

The government has made a major U-turn on its justice reforms by making it easier for the victims of domestic violence to claim legal aid.

Ministers faced criticism that their reforms would make it too difficult for women abused by their husbands and boyfriends to get the advice they needed as the definition of domestic violence was too narrow.

On Tuesday, justice secretary Ken Clarke said the government was amending the Legal Aid, Sentencing and Punishment of Offenders Bill to make it easier for women to receive the taxpayer-funded support they need.

Any victim whose partner or ex-partner has a caution for violence against them will be entitled to aid, while a note from a GP will also entitle women to support. Mr Clarke told the Commons the changes were "fairly formidable".

But campaigners said that many women were too scared to make a complaint to police for fear of reprisals and so would be unable to claim the legal support they needed.

Under the government's original plans, only women who had pursued their domestic violence case through the courts would be able to claim legal aid.

Tonight, Mr Clarke said the government acknowledged some women might be forced to make a formal complaint when they did not want to. He added: "The government has responded because of our concern on domestic violence pretty generously."

He told the Commons the government would be adopting the Association of Chief Police Officers definition of domestic violence, which not only includes physical abuse, but emotional and psychological harm as well.

Women admitted to a refuge and those receiving social services support will also be entitled to claim legal aid.

Mr Clarke made the U-turn following a series of defeats in the House of Lords. But he insisted the government would not be making any further concessions.

"We have moved in key areas beyond where we were and this evening we have to insist that is where we will end," he said.

Mr Clarke added: "There comes a point where we will forget what the object of this is. We do want more of these cases not to be conducted by lawyers financed by the taxpayer engaging in adversarial litigation about where children are going to live, what maintenance should be paid by one party or the other, or what share of the matrimonial home is going to be owned by one party or the other."

And he said the government was prepared to look at extending this to lower level through regulation if needed, despite insisting lower level tribunals mostly look at point of fact which do not require the input of a lawyer.

Mr Clarke said the government had made concessions to ensure legal aid would be available if a point of law was made in upper level tribunals and the courts.

Extending aid to lower tribunals is the thrust of the Liberal Democrat-backed amendment.

Mr Clarke said: "(The concession) would make legal aid assistance for welfare benefits appeals on a point of law in the upper tribunal, the Court of Appeal and the Supreme Court.

"I can conceive of cases in the lower tribunals where there might be cases where it is a point of law.... is there some situation where someone, preferably the tribunal judge, certifies there is a point of law involved where legal aid should be available?

"We haven't got that at the moment... but just as we've accepted the argument about these legal issues in the upper level tribunals, of course if the same thing arises in the lower tribunals we could do so. We will go away and work on it with the Department of Work and Pensions to see if some equivalent where it is certified by someone other than the claimant themselves or the claimants lawyer, that there is a point of law.

"We have retained for ourselves powers to amend these things by regulation, so we could solve the problem and bring something forward by statutory instrument."

Liberal Democrat president Tim Farron, who tabled the amendment, intervened to establish a time scale.

But the justice secretary said it could be outlined at this stage.

Defining a point of law, Mr Clarke said: "A point of law is where a particular question arises about the interpretation of a regulation and there is no clear and binding precedent for what exactly the law should be when it comes to applying it to this set of facts."

Mr Clarke said legal aid would continue to be available in judicial review cases, telling MPs: "All cases of judicial review we are continuing legal aid.

"Every kind of judicial review... we don't think the government or public body should be resisting a claim about abuse of its powers against a litigant who can't get legal advice. It's not an easy concession to make because some people who seek judicial reviews are not popular with all sections of society but we give them legal aid."

On legal aid in clinical negligence cases, the justice secretary said limits needed to be placed on legal aid because lawyers' bills were eating into money available to treat patients.

He said the government did not accept that any clinical negligence case with a child as a party should automatically get legal aid.

Mr Clarke said: "I can categorically state... any baby who through clinical negligence suffered brain damage resulting in severe disability during child birth will receive legal aid.

But he said specific categories of case would be included, such as those where a child suffered brain injury due to clinical negligence at child birth.

"If a baby were to be injured in an operation at, say, six months, legal aid would also be available under an exceptional funding scheme where necessary to ensure protection of the individual's right to legal aid under the European Convention on Human Rights."

Exceptional case powers would also exist on the face of the Bill, he said, to protect serious cases.

Mr Clarke concluded: "Change is unavoidable if we are to protect access to justice and at the same time ensure the system is affordable.

"On domestic violence, on children, on clinical negligence and welfare benefits, we have sought to ensure scare resources are targeted where it matters most or where alternative funding or representation is unavailable.

"We think we have got it about right."