The new man in the shadows

As the election looms, Lord Bach, shadow attorney general, talks to Chris McWatters and puts Labour’s case for justice.

I didn’t expect to find myself in this position,” says Lord Bach, “but I’m delighted Ed Miliband asked me to do it!”


The position to which he refers – which he has held for the past three months and is set to hold for a further two before the general election – is that of shadow attorney general. Lord Bach was unexpectedly parachuted into the job when controversy broke in Labour party ranks in December 2014. Ed Milliband sacked Bach’s predecessor, Emily Thornbury MP, for tweeting a photo of a house covered in England flags in Rochester while campaigning for Labour during the by-election. At the time, there was widespread criticism of what was perceived as her lampooning of Rochester voters’ patriotism. But Bach won’t get drawn into criticisms of his colleague. “I think that Emily was a superb shadow attorney general over the years and I think she has a great future as a politician,” he says.

Something broader than party politics informs Lord Bach’s diplomatic approach. He steers an equally careful line over the controversy that weighs most heavily on the minds of Tory legal politicians – the sacking of former attorney general Dominic Grieve MP, and his replacement by the less experienced Jeremy Wright MP.

“Dominic was outstanding,” he says. “One of my worries was that it looks as though he was sacked because he stood up to what he thought were silly proposals, wrong proposals as regards to human rights and human rights legislation, and his successor was appointed because it was felt he would be more accommodating”.

Despite this empathy with Grieve, Bach doesn’t really go along with the widespread sniping from lawyers to the effect that Wright is too inexperienced to make a good fist of the attorney general’s job (though admittedly his praise of his Tory counterpart is a little lukewarm).

“I think, to be fair to him, he is able to get lots of advice in his position as attorney general. Of course the legal profession’s view that he is not particularly experienced has no doubt got something to it. But that’s not to say that he can’t be a good Attorney-General.”

Like Wright, Bach was a criminal barrister on the Midlands Circuit before entering politics. “Jeremy Wright, I’m sure, is a fine lawyer,” Bach adds. “He is a bright young Member of Parliament, again I’m sure with a good future.”

The ministerial roles he’s held since becoming a Labour peer in 1998 will have helped polish Lord Bach’s professional suavity. Although never an MP himself, he has spent the past couple of decades working as Government whip in the House of Lords, Under-Secretary of State for Defence Procurement, and Under-Secretary for State for Justice where he was responsible for making controversial cuts in legal aid. In 2013 he became shadow Foreign and Commonwealth Office minister and has kept that role going in tandem with that of shadow attorney general.

There isn’t much time before the May election for a new man to make his mark on the fast-changing legal landscape. Bach is not overtly out on the stump, at least not to the point of making specific pledges on what a re-elected Labour government’s legal programme might look like (beyond an early review of legal aid). But he does have a sense of mission. He sees his primary task at the moment as being “to put Labour’s case for justice”.

“I think there has been a fundamental attack on the main principles of justice over the past few years. That needs to be reversed,” he says.

Where he and Wright differ most sharply is over the Government’s plans, under Lord Chancellor Chris Grayling MP, to repeal the Human Rights Act 1998.

Wright advised the Tory party these were “fine, viable and legal”.

Lord Bach begs to differ.

“The fact that the proposals that the Lord Chancellor came up with do seem to be – and here I’m quoting Dominic Grieve  – ‘almost puerile’, ‘full of holes’, ‘unworkable and will damage the UK’s international reputation’ ... then it does seem to me it [Wright’s advice] is mistaken in almost every respect.”

“One of the things I’m proudest of in the last Labour government is the emphasis on human rights, shown particularly by the passing of the Human Rights Act.”

A decade and a half on, the Conservatives want to repeal the Act. One of the reasons they give is that the European Court of Human Rights in Strasbourg on hot topics, such as whether prisoners should be allowed to vote, can override national parliamentary sovereignty. But the spectre of being ground under the heel of faceless bureaucrats from Brussels is not one that keeps Bach awake at night.

“If I wanted to I could quote very senior judges, both past and present, who make it clear that the system is working pretty well. English judges don’t have to blindly follow every decision from Strasbourg. Parliament has its important say. The measure of appreciation that has always been granted by the Strasbourg court is something that seems to be left out of the Conservative argument. And indeed if we look at the example of prisoner voting – it’s interesting that the Strasbourg verdict of the decision of the other day suggested that British governments had been in breach of the ECHR, but that there would be no remedy for those who had been wronged. If the system wasn’t working, then of course these would be interesting ideas. But it seems to me that – of course, with faults – it does work. To put into effect what the Conservatives are planning might lead to us having to leave the ECHR – which would be an absolute disgrace, given that we helped create it. It would look so appalling for Britain with its legal reputation to be leaving that organisation with members whose legal reputation perhaps isn’t as great as ours. And it would be such a step backwards in terms of human rights that no government should actually contemplate it.”

“Governments are very powerful. The state is very powerful. What’s important is that the individual citizen is not forgotten. It’s very easy for that to happen. It doesn’t matter if the government is right-wing or left-wing. Labour’s record on that in government is outstanding, and it changed the culture.”

So far, so urbane. Yet mention the current Lord Chancellor, Chris Grayling MP, and you start to feel the iron fist in Lord Bach’s statesmanlike velvet glove. This is clearly a man who picks his battles, and his opponents, with care – but doesn’t pull his punches once he starts fighting.

Grayling, according to Lord Bach, is “so clearly ill fitted in my view to be Lord Chancellor. I do think it is possible for a non-lawyer to be Lord Chancellor, because I don’t see why a non-lawyer can’t understand the principles of British law. But it is the bottom line that the Lord Chancellor must understand what the principles of British law are, and abide by them. And I’m afraid I don’t think the present Lord Chancellor really has much interest in, or any conception of, what the British legal system has to offer.”

“I’m sorry to have to say this. It’s not a party point. If you have followed debates in the Lords in the last few months – particularly as far as judicial review was concerned – there has been, very interestingly, a very powerful group of completely non-party ex-lawyers, ex-judges or current advocates who have complained, I think that is the right word, bitterly about the Lord Chancellor himself. That’s unique.”

Bach is particularly outraged that the Government’s top justice official has so steeply increased the cost of civil court applications in recent weeks. (The new fees – 5% of the amount claimed between £10,000 and £200,000, and a flat fee of £10,000 for claims above £200,000 – involve rises of up to 600%.)

If his party wins the election, he promises this is something Labour will review. He also strongly criticises the decision to withdraw legal aid from individuals who want to appeal the removal of their benefits, as well as the reduction of legal aid for judicial review. This makes it less likely that an individual with a legal case against the state will be able to afford to mount that challenge.

 “Judicial review is a vital safety net and protection for the citizen in a world where big governments and big corporations are more and more powerful. And to start playing around with a system where there was no evidence that it wasn’t working properly seems to me to be a reckless thing for a Lord Chancellor to do.”

“There are phoney claims – of course there are, as in all aspects of the law – but where was the evidence that this was widespread or that abuse was taking place? Or that it was some kind of left-wing plot? All that was nonsense, and one of the things that I’m afraid has been obvious in the course of the last five years is how the Government has been prepared to legislate and change our system, not on the basis of evidence (because there is no evidence for the abolition of the social welfare law nor on judicial review) – but, it seems to me, just [on the basis of] a sort of thought they have, which may well be ideology.”

Bach is still more scathing about what he sees as the government’s hijacking of this year’s celebration of the 800th anniversary of Magna Carta, which it invoked at the Global Law Summit it hosted in February. This is eye-poppingly disingenuous, he suggests – an act whose hypocrisy is all the more startling when the Government is rolling back the very freedoms Magna Carta extended.

“Frankly, to hold an event in February – two or three months before a general election in May – that is supposed to record the 800th anniversary of Magna Carta, which as I understand it, was signed in June, probably starts to give the game away. This is a pre-election bid to link yourself and your Government with Magna Carta.”

“The joke is for this to be linked with commercial law and business in the way that it has been, though of course business is very, very important. But Magna Carta is to most of us – to most British people and around the world where English common law has been widespread – about doing justice and not making it difficult for some people to get some access to justice. That has been the basis of Magna Carta and is what we should be still trying to do. And the irony that a Lord Chancellor in this particular government is celebrating Magna Carta – and on the same day raising fees so high in the civil courts that only those who are quite well off can actually afford to go to law – seems to me striking, and it doesn’t seem to matter very much to him.”

As for the Conservatives’ Government partners, the Liberal Democrats, Bach charges them with “frankly astonishing” levels of “complete hypocrisy”. “A party with a reputation for justice and liberty; for them to vote through the LASPO Act [the Legal Aid, Sentencing and Punishment of Offenders Act, 2012, which brought about significant cuts in legal aid] is absolutely outrageous. They should be ashamed of themselves.”

In the past, Bach has been on the receiving end of the legal profession’s rage himself. As Labour’s legal aid minister in the last Government he was behind the unpopular reintroduction of means testing in the Crown court (he’s unrepentant) and the cutting of criminal barristers’ fees by 13.5 per cent (which he says had to be done before the last election; “economic circumstances were such that we had no choice”). His critics also claimed he was keen to introduce price-competitive tendering in criminal legal aid, though he says he actually stopped two pilots of this in 2009-10, “so I think that criticism is unfair”.

Even if he won’t be drawn on detail now, what he says he is hoping for after the next election – if Labour wins – is a gentler climate in which the little man can start to thrive again. “We do think there needs to be a change of tone and attitude, so that we’re on the side of all lawyers, but particularly those who are prepared, as lawyers always have been, to help the least privileged in society, who often need the help of the law more than anyone. There’s too much law for those who have everything – and too little law for those who have nothing.”

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Chris McWatters

Chris practises family and immigration law at Garden Court Chambers. He regularly contributes to Counsel and is a member of the editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.

Chris McWatters

Chris practises family and immigration law at Garden Court Chambers. He is a member of the Counsel editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.