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Legal Aid Reform Debate

24th January 2012

Jonathan Djanogly responds to a back bench MP’s debate on reform to the legal aid system.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I congratulate the hon. Member for Ealing, Southall (Mr Sharma) on securing the debate. This is an important topic and one that we have discussed at length. I recognise a number of Bill Committee colleagues in the Chamber today. As the hon. Gentleman said, the issue is still being discussed in the other place, as the Legal Aid, Sentencing and Punishment of Offenders Bill continues its passage through Parliament. However, I welcome the opportunity to have a debate on this specific topic today.

It is notable that the subject of the debate on the Order Paper emphasises the effects of our reforms to legal aid, rather than leading us to debate only the justification for those reforms. It may be helpful, therefore, if I give the wider context for our proposals, without which a proper response about the effect on women and families cannot be given.

I start by confirming that the Government are committed to the principle that domestic violence victims need support both legally and otherwise. The Home Office is providing more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services and £900,000 to support national domestic violence helplines and the stalking helpline.

The Ministry of Justice has contributed towards the funding of independent advisers attached to specialist domestic violence courts since 2007-08 and will have contributed just over £9.25 million by the end of 2012-13. In addition, the victim and witness general fund will provide a total of nearly £15.5 million in grant funding over the next three years to voluntary sector organisations that support the most seriously affected, vulnerable and persistently targeted victims of crime. Of that, nearly £4.7 million will be used to fund 44 court-based independent domestic violence adviser positions across England and Wales for the next three years. My hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) was right to mention that. We will also allocate nearly £3 million a year for the next three years to 65 rape crisis centres, and we are working with the voluntary sector to develop the first phase of the new rape support centres where there are gaps in provision.

Domestic violence protection orders are being piloted in three police force areas. They are designed to give immediate protection to victims by banning a perpetrator from returning to the house, thus giving the victim the breathing space that they need to consider their next steps. Such orders show a real commitment by this Government to tackling domestic violence—and, if I may so, it is a commitment that is rarely recognised or taken into account when directing criticisms to our proposals for legal aid.

Karl Turner: I am obliged to the Minister for giving way. Will he address the point that I made in my earlier intervention? What effect does he think that the closure of 23 special domestic violence courts will have on women?

Mr Djanogly: The hon. Gentleman is avoiding the reality of the situation. In all except for fewer than five of those courts, the service is being transferred to other surrounding courts. I will write to him with the specific details because I do not have the numbers in front of me.

With that context in mind therefore, I will move on to the specific issue of the legal aid reforms. The £2 billion annual cost of legal aid, combined with the economic climate of the day, mean that hard choices must be made. It is essential that resources are focused on cases where legal aid is most needed—that is where people’s life or liberty are at stake, where they are at risk of serious physical harm or immediate loss of their home, or where their children may be taken into care.

As well as retaining legal aid for criminal cases, we are also keeping legal aid for mental health matters, asylum matters, debt and housing matters where someone’s home is at risk and legal aid for judicial reviews of public authorities. All of those are directly relevant to family welfare. That means that we are retaining legal aid to seek an injunction to prevent domestic violence and to oppose a child being taken into care. We are also retaining legal aid for private law family cases where domestic violence is a feature. We will also be keeping and extending legal aid for family mediation. The power to waive the financial eligibility limits in cases where someone is seeking an injunction against domestic violence also remains, so those who need help securing protection will be able to get it.

Mrs Grant: Does the Minister agree that excluding undertakings from the domestic violence gateway could have the perverse effect of encouraging litigation, thus potentially increasing costs?

Mr Djanogly: As I said in Committee, the Government are looking at the question of undertakings and that continues to be our position. We hope to come forward with that as the Bill progresses through the other place. If I am to say very much more, I will not be able to take any further interventions.

We are also retaining legal aid for all child parties in family cases, and of course exceptional funding will be available in any out-of-scope case where a failure to provide legal aid might breach the European convention on human rights or EU law. Taken together, we expect such provisions to mean that we will continue to spend around £120 million a year on private family law legal aid, based on 2009-10 figures. When we include legal aid for public family law matters, spending will well exceed £400 million, again based on 2009-10. We will continue to spend nearly £130 million a year on legal representation for child parties. That represents around 95% of current spend.

I accept that women and children will often be directly and indirectly affected by private family law proceedings, but, as I have said in the past, we have had to make tough choices here. We cannot afford to fund generally lengthy and often intractable disputes in the family courts. However, we know that mediation can lead to better results that are consensually and less acrimoniously agreed and that are potentially longer-lasting than those imposed by a court. We expect an extra 10,000 mediations a year, which is up from the current figure of around 15,000.

Mediation will not always be appropriate, however, particularly when domestic violence is involved. We know that it can have a devastating effect on women and children, as well as men, who are a significant and often overlooked group of domestic violence victims. Domestic violence is also a significant predictor of children being taken into care as well as a precursor to all sorts of other social problems. On top of that, we also know that perpetrators of domestic violence can assert a controlling, insidious power over their victims, which could potentially stop a victim from effectively presenting their case against the perpetrator in court. On those points, I agree with the hon. Member for Ealing, Southall and with Baroness Scotland. However, the hon. Gentleman’s example of a woman who would not get legal aid after running from an abusive husband is not accurate. That sort of case would get legal aid. When a person is convicted of domestic violence against a partner, the partner will be eligible, as conviction would count as evidence. That is why we have made a large, and extremely important, exception in our proposal to remove most private family legal aid from scope of our reforms—that is where domestic violence is a feature.

There has been much debate about the definition of domestic abuse in the Bill and the fact that we do not use the definition of the Association of Chief Police Officers. We are considering that as the matter proceeds through the other place.

There has also been much focus on the evidence criteria for domestic violence to qualify for legal aid in private family law cases. We need clear, objective evidence of domestic violence to target taxpayers’ money on cases where the victim needs assistance. The allegation, which has again been made today, is that the Government’s criteria will miss a great number of genuine victims, and various pieces of evidence have been adduced to support this, and we will continue to look at them. They include the evidence provided by Southall Black Sisters, who have made a significant contribution to the whole case.

Those pieces of evidence refer to domestic violence victims as a whole and point out their difficulties in dealing with the civil or criminal justice systems. We are dealing with a subset of that group—those who are seeking private family law legal aid. They will have, in certain respects, slightly different characteristics to domestic violence victims as a whole. By definition, they will be engaged in the civil justice system. A significant number, nearly 10,000 in 2009-10, will be seeking civil legal aid for a protective injunction at the same time as they seek legal aid for their private family law matter. They will all meet the evidential criteria. We know that in total there were 70,000 legal aid family cases in 2009-10. Let me compare that figure to the prevalence of the types of evidence that we are requesting. Around 24,100 domestic violence orders were made in 2010, the great majority with the benefit of civil legal aid. Around 74,000 domestic violence crimes were prosecuted in 2009-10, and there were 53,000 domestic violence convictions. Around 43,000 victims of domestic violence were referred to Multi-Agency Risk Assessment Conferences in the 12 months up to June 2010.

We also propose that an ongoing criminal proceeding for domestic violence and a finding of fact in the courts will be taken as evidence. Now these figures will clearly overlap to some degree, but what they point to is that a significant proportion of those 70,000 private family law cases that we currently fund will continue to be funded. We think that this proportion will be around 25%, which matches our rough estimate of the prevalence of domestic violence. I should also say, though, that this comes from a number of sources, and definitive evidence is not available.

I have also committed to look again at whether the issue of undertakings in a court can be used as evidence. We are clear about the need to ensure that those who are victims of domestic violence and need legal aid can access it and these requirements are designed to enable that.

Turning to legal aid for children, we have protected funding in areas that specifically involve children. We have retained legal aid for child protection cases, civil cases concerning abuse of a child, and for cases concerning special educational needs assistance. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings.

I should highlight that in civil cases, such as clinical negligence, claims brought in the name of a child are usually conducted by their parents acting as the child’s “litigation friend”, rather than the child themselves. That is a normal part of the rules around civil litigation. As I mentioned earlier, there will also be an exceptional funding scheme for cases where legal aid will not generally be available, which will take into account a person’s ability to represent themselves in legal proceedings where the European Court of Human Rights applies. That will clearly be an important factor in the case of children who might otherwise be left to present their case without assistance.

It is worth noting that the Government published an equality impact assessment, which laid out our assessment of the effects on women of planned changes to legal aid. It recognised the potential for the reforms to have an impact on women and children, but in the context of the cuts that need to be made, and the deliberate focus of legal aid on those who are most vulnerable and in need, we do not believe that this impact is disproportionate.

I do not pretend that the choices we have had to make will have no impact, but they needed to be made.

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