Legal aid reforms postponed

Last week the government has decided to postpone the implementation of its legal aid reforms from October next year, when they were anticipated to take effect, until April 2013. The Legal Aid, Sentencing and Punishment of Offenders Bill has not yet finished its passage through parliament and is a matter of huge controversy to those concerned with access to justice. The decision to postpone has been greeted with huge relief by concerned bodies such as Resolution (formerly the Solicitors’ Family Law Association, of which we are all members here at CFLP) and the Law Society, who have been particularly concerned that the government’s proposed reforms to family law legal aid (in particular) will leave vulnerable members of society without legal representation as they navigate the legal maze and the court system.

Resolution’s Chair, David Allison, said:

“We welcome today’s announcement, and are pleased that Ministers have listened to the very serious concerns expressed by Resolution members and so many others who are at the coalface of supporting families. At the same time, it is important to remember that this is only a delay in implementation, rather than a significant policy change, which is what is actually required.

“Nevertheless, we hope that the Government will take this opportunity to think again about the Legal Aid Bill. We have said from the start of the process that the proposed reforms will have a detrimental impact on access to justice for the most vulnerable people in society; will clog up the courts as a result of more litigants in person; and will not actually save the government a significant amount of money as a whole. … We are therefore looking forward to working with Ministers to ensure that there are real changes to the Bill, rather than simply postponing measures that will take legal aid away from families who need it the most.”

The spectre of many more litigants in person is very worrying to all of us involved in the family justice system. The family courts already provide a great deal of assistance for those who choose not to, or cannot afford, legal advice – indeed they bend over backwards to support unrepresented litigants, as access to justice is such an important principle. However, this has put the courts under huge pressure, and delays have been getting ever longer because of the combined effect of litigants in person and cuts in funding within the court service. If legal aid is cut further, to take out almost all private family law cases from eligibility for advice and representation in court under the legal aid system, this will inevitably lead to more injustice for all as overwhelmed courts seek to deal as quickly as possible with people who do not grasp the legal implications of their situation. It will also mean that people who do not have the money to pay privately for legal advice may give up their fight for a fair share after a divorce or separation, leaving a greater burden on the state to pick up the pieces.

Comparatively few private family law issues end up being resolved by a court order at a final court hearing, but legal advice is an essential part of the negotiation process that leads people to settle. Without it, people have no idea of their entitlements or responsibilities, or the strengths and weaknesses of the case they plan to put forward. It is not the judge’s function to advise on this; the lack of advice will increase the drain on the courts as time is taken up unnecessarily and the end results are unsatisfactory. Postponement of the new plans is welcome; review would be even better.