Pressure prompts review of ‘domestic violence’ legal aid definition
The government has delayed its plans to respond to the legal aid and civil costs consultations until after Easter, and will ‘review’ the definition of domestic violence, the legal aid minister said last week.
Jonathan Djanogly had previously said the government would respond before Easter, but speaking at the National Pro Bono Centre’s Question Time debate last week, he revealed the change in timetable.
The Ministry of Justice received more than 5,000 responses to the legal aid consultation alone, which closed on 14 February.
Djanogly said the responses are being considered, and in particular the MoJ is reviewing the definition of ‘domestic violence’ to be used when granting legal aid in private family law cases, and considering implementing a regime for cases where there are ‘exceptional circumstances’.
The minister reaffirmed the government’s commitment to increasing the use of mediation, saying it is looking to extend this in civil courts and tribunals, and in the public sector, because it is cheaper, faster and less confrontational than court.
But shadow justice secretary Lord Bach warned that mediation was not a cheap option. ‘If it’s done properly, it’ll cost a lot of money’, he said.
Bach attacked the government’s proposal to take much of social welfare law out of the scope of legal aid, calling it ‘ludicrous’, ‘immoral’ and ‘counterproductive’.
The government’s proposal to remove legal aid for medical negligence cases was roundly criticised by the panellists. Bar Council chair Peter Lodder QC said that, as a bare minimum, public funding should be retained for an investigation process to get an expert's report to ascertain whether there is a case or not.
Djanogly insisted there needed to be a rebalancing of the interests of justice between claimants and defendants, saying that the rules had swung too much in favour of claimants.
He said claimants have ‘nothing to lose’ by taking actions, and ‘no interest’ in how long cases lasts.
With a hint at where possible legal action may lie if the government does proceed with the reforms outlined in the paper, Law Society chief executive Des Hudson said the impact assessments carried out by the MoJ were not sufficient.
Hudson also criticised the government’s ‘flawed thinking that mediation is the answer’ to solving all legal problems.
He said: ‘Reasonable and proportionate use of mediation is sensible, but the idea that it can stretch over all problems is an unpersuasive argument.’
Diane Burleigh, chief executive of the Institute of Legal Executives, said the ‘savage’ cuts to legal aid would result in the complete ‘annihilation’ of the current structure of pro bono services, due to the increased demand that will be put on their services.
Lodder stressed that pro bono services must not be a substitute for the adequate provision of legal aid.
But Djanogly insisted: ‘No one’s saying pro bono should be a replacement for legal aid – it’s an adjunct, not a replacement.’
Elsewhere in the debate, challenged over the impact that the legal aid cuts would have on citizens advice bureaux, Djanogly dismissed the idea that the cuts would bring about their demise. 'Even if we didn’t cut legal aid for any CAB, they would still have a problem,' he said.
'Most of their funding comes from local government, which is being cut.'
Last week, the Legal Action Group said that 150,000 more people than the government first predicted will be hit by proposed legal aid cuts.
Comments
This idea of legal mediation
This idea of legal mediation is okay, but not for every single case. I am sure that the government will take this into account because it could really have the complete opposite affect of what they want if it does not. It will be interesting to see the outcome of this decision and how it will affect the courts in the long run.
Local Magistrates courts
Local Magistrates courts should have domestic violence courts (even night courts) to deal with these sort of cases. I agree with the above comment that Legal Aid should be given to the most vulnerable in society but in most domestic violence cases the defendants tend to be the most vulnerable members of our society.
Review of legal aid definition of domestic violence
1 the only evidence that mediation is better cheaper and quicker than litigation comes from a 2007 National Audit Office report which is flawed to say the least.
2 mediation as part of but not as an alternative to litigation has merit.
3 the Government and the MoJ will not discuss their proposals sensibly because the decision has already been made to implement changes. Saving money is paramount. The rules tipped too much in favour of litigants is the sort of comment that has been made since 1948. There is no evidence for it.
4 the Government has failed to take the chance to review the justice systems, how they are funded and how access is funded. Why? The cutting of legal aid, access to advice, access o advocacy is a deliberate attempt to cut costsby reducing the possibility f claims being taken. Never mind the standards of service in NHS, or access to Courts for protection as police numbers are cut. Never mind access to solicitors who can act as advocate for a person who would otherwise have to suffer a cut in benefits, due to maladministration, in silence.
5 all of us should take time to read the research evidence on mediation if we are to advise clients properly about the pitfalls. Allowing clients to opt for mediation based on the propaganda that will be contained in the information sessions without offering an alternative view would be negligent in the extreme. I wonder what would happen if both parties adopted a conciliatory approach through round table meetings with lawyers in attendance in absence of mediator and then issued proceedings if agreement couldn't be reached? I have a feeling that the mediation information session will be confined to the bin of legal nonsense very quickly.
6 collaborative law seems to me to be the answer.