Westminister Watch - March 2012

Putting the pieces together. Toby Craig and Charles Hale try to make sense of how the multitudinous legal issues currently before Parliament fit together.

Sometimes, one could be forgiven for looking across the political terrain; counting up the multitude of issues being debated and wondering if any of it really makes that much sense at all. It is all too easy to focus on particular issues which, understandably, exercise our minds. But, by stepping back and looking at the broader policy framework, sometimes different perspective develops.

There are few better examples than the justice system, always one of the most scalding of political hot potatoes.

Since June 2011 the Bar has been arguing the case against the Legal Aid, Sentencing and Punishment of Offenders Bill primarily because of the effect it would have on access to justice for hundreds of thousands of litigants. With the Government deaf to our pleas, our efforts have been aimed at Opposition parties and particularly the House of Lords where the Bill underwent a line by line scrutiny. We were therefore able to appreciate the irony on 8 February when Jonathan Djanogly, MP, Parliamentary Under Secretary of State at the Ministry of Justice boldly asserted, “We need to make it a reality that our courts are open and accessible to as many people as are interested in seeing them work”. He was not of course referring to those who will be shut out of legal aid (his ministerial remit) by the changes in the Bill but instead... to cameras in court. 

Leading this particular debate in Westminster Hall was John Whittingdale, MP, Chair of the Select Committee on Culture, Media and Sport and of the Joint Committee on Privacy and Injunctions. He is a man who by his own reckoning has had “dealings with many lawyers”. However it will take primary legislation to permit live footage other than in the Supreme Court (where 139,000 have since last summer watched the live stream on Sky’s website, most recently the Julian Assange appeal). First, we need to await the Queen’s Speech, to see if there is legislative time for such a Bill. Even then, as Mr. Djanogly explained, it will begin with judgments and sentencing remarks in the Court of Appeal. Over a longer period he expects to extend broadcasting of sentencing remarks in the Crown Court. As for trials, “that is not being reviewed at the moment”. No need to call your agents just yet.

And whilst that’s going on, the Government was responding to the Family Justice Review, one element of which calls for greater use of mediation. That isn’t so controversial (the same cannot be said for all of its response); indeed the FLBA has been vocally supportive of using mediation in private cases for some time. For mediation to be successful, the Government should recognise that access to professional legal advice at an early stage remains one of the most effective ways of promoting alternative forms of dispute resolution and, reaching an early settlement.

Let us leave aside for a moment the fact that we know the Legal Aid Bill will create more litigants in person, who simply will not be able to afford to consult a lawyer, thereby effectively removing that access to professional advice in many cases. Assuming an individual is able to receive legal advice, at least we know it can be given in confidence. Surely, that’s a fundamental principle? Well, up to a point, as we are rapidly discovering from the passage of the Protection of Freedoms Bill. The Government did not accept Baroness Hamwee’s amendment which would have brought the Regulation of Investigatory Powers Act 2000 (RIPA) in line with other legislation protecting legal professional privilege in every case, other than the well-accepted exception of furtherance of a criminal purpose. This is serious stuff. Lord Henley, the Home Office Minister stated that there are some occasions “where our intelligence and law enforcement agencies may need to target these communications” He used as examples a killer on a shooting rampage who may wish to ask advice or refuge from his lawyer or the terrorists planning an attack who may consult his lawyer at the lawyer’s officer “where there might be an undercover officer in place” to obtain information which could be used to avert the attack. But at least that’s consistent with broader Government policy on civil liberties...well, sadly, no. The Coalition Agreement is quite clear on the Government’s desire to roll back oppressive and authoritarian legislation, though RIPA (which could be amended by the Protection of Freedoms Bill) apparently does not fall into this category. The Bar’s efforts to promote an amendment enshrining legally privileged conversations are explained in more detail by Nicholas Griffin and Gordon Nardell QC in a forthcoming Counsel article and is essential reading.

Taking a new approach?

Recently announced measures intended to take more cases into the County Court to promote “greater accessibility, speed and efficiency” and take pressure off the High Court, are thoroughly inconsistent with the Legal Aid reforms, which will clog the same courts with litigants in person, slow down trials and generally cost more in the long run. The Government continues to suggest this will not happen, but all the evidence paints a different picture. Cost saving is plainly a la mode, but legislation and reforms are piecemeal and lack coherence. And in any event, it’s far from clear that savings will actually be made. The lack of join up is plain to all those able to stand back and take in the bigger picture. Not so, its seems to this Government.

Guiding principles

It seems fair to pose a rather basic question. What does the Government want justice in 21st Century Britain to look like? What are the guiding and fundamental principles to which it must adhere? Legal privilege for instance has been eroded and this Government has resisted efforts to restore it. The right to jury trials has been under threat and debated for a number of years. We remember how the last Government spent three years (1999-2002) trying to abolish the right to elect trial by jury in either way offences. Family justice is being overhauled. Sentencing remains a political football, the U-turns are well known. Access to justice is being chipped away, whether through the shrinking of legal aid or civil litigation funding reforms which put anything but the most obviously winnable cases at risk of not viably being taken forward. The Government is we are told, committed to promoting our world class legal services sector internationally, so valuable to UKPLC. That is welcome and important and we will support that. But it has to recognise the values which underpin a system which is so widely valued for its fairness and impartiality all around the world. The battling oligarchs recognise a good and fair system when they see it – it really is time that the Government did too and stopped to think before continuing to put it under peril.

Perhaps that’s the problem with piecing together large and complex jigsaw puzzles. It helps to start with the corners. And if it’s hard to identify what the corners, or in this case, cornerstones, look like, then it’s hard to know where to start at all.

Charles Hale is a barrister at 4 Paper Buildings and a member of the Bar Council.

Toby Craig is the Head of Communications at the Bar Council.