So now we know that we will have a Conservative government for the next five years (barring the unexpected). We also know that Michael Gove will be the new Justice Minister and Lord Chancellor. What bearing will these things have upon the immediate future of family law?
Well, the first and perhaps most obvious thing to say is that we can surely expect the new government to continue the old government’s policy on legal aid. There will be no U-turn there, in particular no reinstatement of legal aid for most private law family matters. In fact, the Conservative Manifesto pledged to make further cuts to the departmental budgets, so there may be further legal aid cuts in store, although quite where they might be is not clear. Hopefully, however, the new government will at least see its way to easing the evidence burden that the last government’s changes imposed upon those seeking legal aid for domestic violence.
We may also expect further initiatives aimed at ‘cheap’ sources of advice/legal help for those previously covered by legal aid. These may, for example, take the form of further online tools, local advice initiatives run by students and others, and further easing of rules relating to non-qualified ‘lawyers’.
No doubt the new government will continue to promote mediation as an alternative to expensive court proceedings. Will it go one step further and introduce compulsory mediation?
Another money saving method employed by the Ministry of Justice under the previous administration was, of course, the increase of court fees over and above inflation, so one can probably expect more of that in the next five years. We must hope that any such increases do not prevent access to justice by leaving some earning too much to be exempt from the payment of fees, but not enough to afford to pay them themselves.
Similarly, the Department for Work and Pensions is likely to continue its policy of making users of the child maintenance system pay for its upkeep. Whether the new government will succeed where all of its predecessors have failed and actually make the child maintenance system work efficiently is another matter.
Moving on to the reform of the law itself, the Conservative Party of course promotes itself as a pro-marriage party. This obviously manifests itself in efforts to make the tax system more favourable for married couples and in the pledge to provide £7.5 million a year for relationship support, but will it also have a bearing upon reform of divorce? Personally, I can’t see the new administration bringing in no-fault divorce, but then the last attempt to do so occurred under a Conservative administration, so who knows?
Even more unlikely, however, must be any attempt to bring in property rights for (former) cohabitees during the next five years. I suspect that that would be a step too far for the ‘traditional family values’ of Mr Gove and his colleagues, seen as undermining marriage even more fundamentally than no-fault divorce, although I hope I am wrong.
Perhaps the biggest area of concern to many lawyers, however, will be that of human rights. The new government now has a free hand to pursue its stated aim to repeal the Human Rights Act and replace it with a British Bill of Rights. Many fear that this will lead to an erosion of human rights in this country, although quite how the rights protected by a Bill of Rights will differ from those protected by the Human Rights Act is not clear to me. Certainly, one would expect the right to a fair trial, the right to respect for private and family life and the right to marry to be in any Bill of Rights. The other issue will be whether the change will make it harder to enforce human rights – one must hope that it will not.
Obviously, the new administration will be similar to the old and we must therefore expect, for the most part, more of the same. That is not to say, however, that things will look the same in 2020 as they look now. In fact, I suspect that they will look considerably different. Whether they will be better, however, depends upon your point of view.