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Changes to legal aid green paper being considered, Djanogly admits

21 March 2011

The government is considering making changes to the legal aid cuts set out in its green paper, justice minister Jonathan Djanogly has admitted.

Djanogly also said the government would not be publishing a response to its consultation on the green paper until after Easter, a month later than expected.

The minister said legal aid would no longer be available for the “standard divorce scenario” or for standard disputes over contact.

However, he said the MoJ would be looking in detail at its definition of domestic violence. The current position in the green paper is that clients will only get legal aid for private law family disputes where there has been a criminal conviction for domestic violence or injunction proceedings.

Speaking at a packed ‘question time’ session at City firm Allen & Overy last week organised by the National Pro Bono Centre, Djanogly acknowledged that the funding of expert reports in medical negligence cases would be “difficult” if Lord Justice Jackson’s proposals to restrict recoverability in conditional fee cases were adopted.

He said that officials at the MoJ were looking at the issue in an attempt to find a solution.

However, Djanogly denied that Jackson LJ believed that legal aid for medical negligence cases was a pre-condition for the changes proposed in the Jackson review. “He hasn’t said that to me when I’ve spoken to him,” Djanogly added.

Richard Miller, head of legal aid at the Law Society, said the MoJ had “a hell of a lot of work to do” in considering the 5,000 responses to the green paper.

He hoped the delay in publishing its response meant that the government was going to consider the responses carefully.

“There are a lot of complex issues which they need to think through more thoroughly,” Miller said.

He said Dianogly appeared uncomfortable when he was told that the removal of legal aid for medical negligence would deny help to catastrophically injured babies.

“This is clearly an issue of grave concern and great public interest,” Miller said.

Miller said that, as well as retaining legal aid for these cases, it seemed that the MoJ might be prepared to extend its definition of domestic violence.

“Sometimes victims don’t want to start proceedings, they just want to get out of the relationship,” Miller said. “They should not be forced to start proceedings, particularly where they fear that this will trigger violence.”

Miller said that limiting family legal aid to cases of domestic violence could create “perverse incentives” for people to make false allegations.

He added that the MoJ might also be contemplating a change of heart on removing legal aid for education law and forcing people seeking access to services to use a single telephone helpline.

In a separate development, the MoJ has been accused of underestimating the number of people who would lose access to legal aid by more than 150,000.

Steve Hynes, director of the Legal Action Group, said its research showed that 30 per cent more people than the government estimated would lose access to civil legal advice.

“We believe this provides a further reason for ministers to think again about imposing the planned cuts,” Hynes said. “If they do not, over 650,000 people will be denied access to justice.”

Hynes said LAG’s research was triggered when Julie Bishop, director of the Law Centres Federation, noticed that the MoJ’s statistics on social welfare law were based on 2008/09 statistics, rather than the larger figures for 2009/10.

Further research by LAG revealed that the MoJ used data for cases completed rather than cases started and did not include telephone cases.

It concluded that the legal aid cuts in their present form would reduce the number of cases started by 653,659 or 151,659 more than the government estimated.

“The government has used outdated and understated statistics which underestimate the impact of the proposals,” said Hynes.

“We would hope the publication of these figures will give the government reason to think again before introducing cuts in legal aid which would deny access to justice to over 650,000 members of the public.”

Julie Bishop, director of the Law Centres Federation, said the discrepancy between the figures could be explained either by the lack of availability of up-to-date statistics or by a fear that the real figures would look worse.

A spokesman for the MoJ said figures from 2008/09 had been used because these were the most recent audited numbers when the legal aid consultation was published in 2010.

“More recent figures will be incorporated into our final impact assessment as they become available,” the spokesman said.

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