Westminster Watch

Ahead of the General Election, Mark Hatcher takes a look at the main parties’ pledges on justice and considers the impact of a Coalition deal

“There’s no point asking experts… no one knows what’s going to happen… to predict the next general election you may as well play pin the tail on the donkey.” 

Thus says Nigel Farage. With the two main parties level-pegging on 34% in the polls as I write, we look set for a second hung Parliament in a row for the first time in more than a century.

Last month’s Westminster Watch looked ahead to the publication of the party manifestos which have now been launched in various locations away from the village of Westminster. The leaders have been surrounded by the faithful eager to reflect their optimism about the future as the nation prepares for another collective spasm of democracy.

Are voters much the wiser about where the parties stand on justice issues?

Labour was first off the block with an 85-page prospectus introduced by Ed Miliband who claimed to have “heard your stories, your hopes and your dreams. And your frustrations.” So it was heartening to read that Labour will repair the damage done by the Coalition Government to the vital safeguard of judicial review in checking the power of the Executive, presumably by repealing Part 4 of the Criminal Justice and Courts Act 2015. But does Labour’s pledge – to make sure that access to legal representation, which is acknowledged to be a cornerstone of our democracy, “remains available to those that need it” – give us any cause to hope there will be no more cuts in legal aid?

In what seems like a late conversion, Labour is now the party of responsibility for the public finances, applying a triple responsibility lock: cutting the deficit every year, reducing the national debt and securing a surplus “as soon as possible in the next Parliament”. Balancing the books will mean making tough but fairer choices, Labour says. Outside the protected areas of health, education and international development, Labour is frank: there will be cuts in spending. Against this background, we shall need to watch closely Labour’s commitments to review the payment of legal aid in “exceptional cases”, to cancel plans for two-tier contracting for criminal defence work and to review the recent increases in court fees.

In their marginally slimmer 82-page bid to woo the electorate with “strong leadership, a clear economic plan and a brighter, more secure future”, the Conservatives will fight crime and stand up for victims. This will involve scrapping the Human Rights Act for having subcontracted human rights to Strasbourg. It will be replaced with a British Bill of Rights, enabling the Supreme Court to be the ultimate arbiter of human rights matters in the UK. But how will this work in practice for devolved areas of policy?

The Conservatives also claim to have tuned in to the public’s frustration about delays in the courts and the slow pace of modernisation, caused in part no doubt by the growth in litigants in person and the resulting culture of “Do-it-Yourself Justice”. The Conservatives will therefore continue the previously announced £375 million court modernisation programme.

And legal aid? The Conservatives leave little to the imagination in their deadpan commitment to “continue to review our legal aid systems, so they can continue to provide access to justice in an efficient way”. With the massive curtailment in scope of civil legal aid under LASPO, coupled with the rise in court fees, the outcome of this review is unlikely to be eagerly awaited by someone who, for example, sustains serious injuries at work. These reviews will be taking place against the Conservatives’ plans to eliminate a £90 billion deficit in spending by 2017-18 but there is no indication as to how this challenge will actually be met. Both David Cameron and George Osborne have shimmied around how the £12 billion welfare cuts will be achieved.

The Liberal Democrats’ manifesto, which runs to a mere 158 pages, offers some encouragement about access to justice with promises to reverse the increases in court fees, to undertake a review of tribunal fees, to ensure that legal aid is available to those who need it and to re-introduce legal aid for judicial review. A complete overhaul of surveillance powers in 2016 is promised and a proposal to introduce a Digital Bill of Rights.

UKIP’s 76-page, “fully-costed” Believe in Britain manifesto says it is time to bring our British legal system back home and “release Britain from the interfering shackles of the EU”. UKIP echoes the Conservatives’ call for a repeal of the Human Rights Act and the introduction of a new Bill of Rights. It also calls for a reversal of the opt-in to EU law and justice measures, including the European Arrest Warrant. But it is not clear what UKIP would do about legal aid or other access to justice issues.

Only the Green Party, in their 83-page call for a “peaceful, political revolution”, pledge themselves to reinstate £700 million worth of legal aid cuts, presumably funded by introducing a smaller prison system claimed to achieve savings of £5.5 billion over the lifetime of the next Parliament and a greater focus on restorative justice.

Will these individual plans make much difference at the end of the day? If, as seems highly likely, another coalition is formed after 7 May, the welter of party pledges and promises will appear in some form or other in another Coalition Agreement after days of negotiation. If the two main parties’ share of the vote remains the same, UKIP’s support holds steady, the Lib Dems weaken and the SNP achieves predicted gains at Westminster, the negotiations could be more protracted than in May 2010. The main players will have prepared very carefully for a variety of outcomes based on several core scenarios. Researchers in the main parties have been “coalition testing” their manifesto commitments as part of their election planning for months. Dealing with the deficit will be the key priority.

David Cameron’s former Director of Policy, James O’Shaughnessy, co-authored the Coalition’s Programme for Government. His assessment is that if we do get another hung Parliament our media are unlikely to stand for lengthy negotiations as is often the case in other European countries. In his view, “discussions will be transactional rather than trust-based, personalities will be crucial, and securing key government jobs will be paramount.”

In the meantime, before the outcome of the election is clear, civil servants will continue to pour over the details of the party manifestos to be in a position to provide detailed briefings to the incoming ministerial teams. This can also be quite a good opportunity to provide officials with information to inform their advice to an incoming government. The hardest task could be that facing the Cabinet Secretary. Observing impartiality and political neutrality, Sir Jeremy Heywood may well need to bring the parties together to enable negotiations to get under way. It will be from these discussions that a programme for government will be constructed out of the manifesto mix.

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Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.