Labour’s Review of Legal Aid was launched in the ornate surroundings of Committee Room 15 at the Palace of Westminster. Among the paintings there is one of the 1st Earl of Birkenhead (F.E. Smith), the Conservative Lord Chancellor from 1919-22. His imperious gaze down on the assembled parliamentarians, representative bodies and other ‘stakeholders’ added to the significance of the occasion.
The review, which is intended to result in a report which will be debated at Labour’s next annual party conference in September 2016, is being undertaken with four main aims: to set out the principles which should be at the heart of the legal aid system; to develop a legal aid policy that is ‘credible, principled and up to date’; to look at the consequences of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the legal aid cuts; and to influence the Conservative Government to make changes to their existing policies.
The Shadow Justice Minister Lord (Willy) Bach is leading the review, supported by Shadow Solicitor General, Karl Turner, a former criminal practitioner. Bach, who led the opposition to the Coalition Government’s legal aid reforms in the House of Lords, referred to the trauma which LASPO had caused, for which he said Labour was partly responsible. Both Willy Bach and Karl Turner frankly acknowledged that Labour had not done enough to offer an alternative approach in the General Election campaign. The party had made mistakes, Bach confessed. But Jeremy Corbyn (who contributed to the event) gets legal aid and access to justice in a big way. That was the main message of the summit.
It was unusual to hear a Leader of the Opposition speak so passionately about the subject. Reminding everyone that his grandfather had been a poor man’s solicitor in Ealing and that the legal aid reforms of the 1940s had been an essential part of the post-war settlement, Jeremy Corbyn was in full campaign mode. The scale of the cuts and their effects (including those aspiring to careers in the legal profession) needed to be pointed out, he argued. The media perception of ‘fat cat lawyers’ was a total nonsense. It was not just barristers and solicitors who needed to be engaged in ‘getting the message across’. Labour’s crowd-sourcing of questions from the public for Prime Minister’s questions would seek to generate a barrage of questions to bring greater publicity to the plight of legal aid.
Corbyn’s experience as a member of the Justice Committee in the last parliament had clearly shaped his approach to access to justice, just as it had for John McDonnell, the Shadow Chancellor (another former Justice Committee member) who was also present at the launch. He thought LASPO had led to false economies, the consequences of which were fast coming home to roost. The cuts in legal aid, he thought, were part of the Tories’ systematic dismantling of the welfare state which Labour would campaign against, beginning with their response to the Comprehensive Spending Review.
It was all strong stuff, and it went down well with the audience. But you wondered whether members of the Parliamentary Labour Party had heard ‘the message’ or would hear it sufficiently clearly and be prepared to take action. The Shadow Lord Chancellor, Charlie Falconer argued that the review should seek to identify the minimum standards for a legal aid scheme and the ‘minimum cost’ with which they could be provided. But if minimum rather than ‘reasonable cost’ is going to be the yardstick, securing a broadly based consensus could prove challenging.
In the meantime, Labour is listening. Perhaps, in the context of an assessment of the Jackson and other recent civil justice reforms, now is the time to think of additional or alternative sources of funding civil justice (such as legal expenses insurance, crowd-sourcing and Contingent Legal Aid Funds (CLAFs)). In any event Labour will doubtless seek to press the Ministry of Justice for the expected post-legislative review of LASPO to be undertaken sooner rather than later. Willy Bach’s team aim to produce a draft report of their findings and proposals by April next year. They need all the help they can get.
The Chair of the Joint Committee on Human Rights (JCHR), Harriet Harman has written to Michael Gove to register the committee’s concern about the Government’s lack of progress about its plans for introducing a UK Bill of Rights. In the first six months, Government proposals had gone from a Bill in The Queen’s Speech, to ‘proposals’ to ‘a consultation.’ The timescale has moved from the first 100 days to ‘this autumn’ (in September) and then ‘in a few months’ time.’ If the Government publish a White Paper, draft clauses or even a draft Bill for pre-legislative scrutiny by 17 December, when the Commons rises for the Christmas recess (five days before the winter solstice), Ministers will have met their target.
The delay in coming forward with proposals for reforming human rights is no doubt a reflection of the considerable complexity of the subject matter and its potentially far-reaching consequences for the United Kingdom. The issues raised by the Government’s plans will certainly deserve the widest scrutiny and debate, and not just by politicians and lawyers. The JCHR is right to be concerned, for example, about the current uncertainty over whether it has ruled out withdrawing from the ECHR or whether it has ruled out the UK’s obligation under international law to abide by the final judgment of the European Court of Human Rights to which it is a party.
It is interesting to speculate whether the issues with which the Government is grappling were in contemplation when the new Ministerial Code was revised and published in October. The code is the Prime Minister’s guidance to his Ministers on how they should conduct themselves in public office. Until relatively recently it was a classified document. When the Coalition Government was formed in 2010 the Ministerial Code asserted that Ministers were under an ‘overarching duty … to comply with the law including international law and treaty obligations’. But in October of this year the revised version which was published simply referred (in paragraph 1.2) to the overarching duty on Ministers ‘to comply with the law’. The Cabinet Office says that ‘comply with the law’ includes international law.
Perhaps the Cabinet Office should have added, for the avoidance or removal of doubt, that Ministers can neither claim any immunity, by virtue of their office, from the rules of the common law, nor by any decree or order impose a legal duty (or relieve anyone of a legal duty), except to the extent that an Act of Parliament authorises them to do so. On this analysis, our law does not ‘include’ treaty obligations not given legal force by Parliament.
These issues have been exercising the minds of Policy Exchange, Michael Gove’s favourite think tank (he was Chairman from 2002-05). It has embarked on a Judicial Power Project, to examine the proper reach of and limits on judicial power in our constitution.
How far legislative overreach and judicial overreach pose distinct but equivalently existential threats to our constitutional arrangements, because of what has been described, by Professor Mark Elliott of Cambridge University, as ‘a delicate and necessarily implicit comity that informs institutional interactions’, will doubtless feature in the debates on a UK Bill of Rights, when the Government reveals its plans.