From my latest Solicitors Journal column “Family Business”, 9/12/2014
Public funding of the provision of legal services has been with us since as long ago as 1949. It was introduced the year after the NHS to allow those who could not afford to pay for legal advice to gain access to justice. It became, to quote Labour peer Lord Beecham, “one of the great pillars of the post-war welfare state”.
How times have changed. LASPO was rolled onto the statute books last year, eliminating access to public funding for most family law disputes and cutting provision for criminal and civil cases too. Now the courts are filling up with confused and uncertain litigants in person (LiP), and figures published by the National Audit Office (NAO) last week reveal that there has been a shocking rise of almost 90 per cent in the number of family law cases involving children in which neither parent has legal representation.
The conclusion drawn by the NAO was that the government did not adequately consider the social impact of the cuts when wielding its mighty red pen. This has been evident to family lawyers, such as myself, ever since the arrival of LASPO.
Unfortunately, LiP are not the only problem we now face. There has also been a fall in the number of people going to court at all – and who could blame them for staying away? The legal process can seem very daunting, especially to those who are not familiar with it.
Injustice is almost inevitable in the current state of affairs – unfair divorce settlements, resident parents not receiving the maintenance they are due, families struggling unnecessarily on benefits, the list goes on. It is not at all difficult to foresee the social consequences of the legal aid cuts costing the government more than they saved.
As we all know, the legal system depends on the participation of lawyers to function efficiently and effectively – and not just in the courtroom itself. How many of us have cut deals for our clients and reached out-of-court settlements? Pretty much all of us, I’m sure, because we know that such settlements are often in our clients’ best interests.
LiP will often have to pull information about the law from the internet, where it may be inaccurate or incomplete. And as for out-of-court negotiation, that takes real skill and years of training.
With no legal expertise to fall back on, LiPs are left to rely on judges to steer them through the process, holding their hands all the way. But judges are not there to explain the law or guide the bewildered participants through a hearing; they are there to use their skill and expertise to reach a fair judgment. Having to explain each step of a court case is a huge drain on a judge’s time and resources, and it has begun to slow the family justice system down to a painful crawl.
Will anything change if the Labour party returns to power next year? So far there has been precious little evidence of this. The party has said nothing about restoring legal aid and the shadow justice secretary, Sadiq Khan, has not responded to queries on the topic.
On the one hand, Labour is making political capital out of the dismal mess that legal aid has become – and, on the other, its MPs are dodging direct questions about their views on the topic. You can draw your own conclusions from that.
I have a growing suspicion that legal aid may be gone forever, whoever occupies Downing Street the day after the general election.
This article was first published by Solicitors Journal, and is reproduced by kind permission
Photo by smlp.co.uk via Flickr