In its impact assessment on the legal aid green paper, the government notes that people who no longer receive legal aid may tackle disputes differently or - as seems more likely in many situations - may decide not to tackle an issue at all.

Ministers accept this may lead to a ‘deterioration in case outcomes’ and that ‘in particular, case outcomes may be less fair than beforehand’. This may have ‘wider social and economic cost’, the paper adds. It is worth citing some of these in full:

  • reduced social cohesion. For example, failure to apply the rule of law fairly may generate an inclination not to respect rules and regulations and not to comply with social norms and expectations, generating social costs. In relation to family cases, children would be affected as well as their parents;
  • increased criminality. This may arise if unresolved civil or family disputes escalate, or if criminal means are used to resolve disputes, or if a known lack of legal aid encourages people to take advantage of others who might find it harder to defend themselves in future;
  • increased resource costs for other departments. If civil and family issues are not resolved effectively, people might continue to rely upon the state, because failure to resolve one issue may lead to another arising. This may involve health, housing, education and other local authority services.
    • So the paper recognises that the proposals: may be unfair; may leave some unable to fight for their rights; may result in worse outcomes; and may increase costs. And it recognises that the inability of people to seek legal help may mean they take the law into their own hands (see 27 January’s Gazette
for more on this).

So are there more palatable alternatives, assuming that cuts are a done deal?

Stephen Cobb QC, chairman of the Family Law Bar Association, suggested to me an alternative to removing from the scope of funding all private law family cases where domestic violence is not involved.

The FLBA proposes an enhanced First Hearing Dispute Resolution appointment, which will not only encourage consideration of cases by mediation (as at present) but, for those cases which are not suitable for mediation (or where mediation fails), will require allocation of cases to be made to one of two court tracks.

The more straightforward cases will proceed on the equivalent of the civil ‘fast-track’, and those that require greater judicial involvement, on the equivalent of the civil ‘multi-track’.

The FLBA proposes that public funds will be available for the ‘multi-track’ cases only.

In this way, it suggests, significant savings will be made, but funding will remain available for those parents whose circumstances present the most challenges.

There must be other solutions like this which are less draconian than the government’s scorched earth approach to economies. Let’s hope ministers actually listen to what they are told during consultation.

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