Westminster Watch

Mark Hatcher examines the issues facing those in Westminster at the start of the new year

Few MPs returning to Westminster after the Christmas recess will have been able to predict how the last year would have ended: a majority Conservative Government, an Opposition that is in disarray in the parliamentary party with a frontbench openly at odds with its leader, the decimation of the Liberal Democrats in the Commons, 54 seats occupied by Scottish Nationalists, the collapse of Labour in Scotland with just one seat north of the border at Westminster and one held by the Conservatives and four million votes for UKIP at last May’s election.

Seven months into the new Parliament the big challenges ahead of the parties remain: the tension between Scotland and England and how to achieve constitutional arrangements that will provide a sustainable future for the United Kingdom; the continued focus on national deficit reduction and how this will affect the size and shape of the state; and the UK’s future relationship with the European Union, to be determined in a referendum by 2017, whose outcome will be much more difficult to predict than in 1975, as a Europe without frontiers and the refugee crisis place unparalleled strains on the union as a political construct and the economic arguments for remaining part of the European project become more nuanced.

Add to the mix uncertainty over the outcome of the upcoming US Presidential election in November, the effects of an upsurge of terrorism and the challenges of home-grown militants, the rise of cybercrime and the possibility of a financial crisis in the Eurozone and it is a wonder that politicians at Westminster will find the time to focus on the domestic agenda.

Perhaps the biggest surprise in the announcements made by George Osborne following the Comprehensive Spending Review, setting the parameters for public spending until 2020, was the decision to execute a U-turn on planned cuts to tax credits. Following a rebellion in the Lords and among his own MPs, an expected £27bn fiscal windfall provided an opportunity not just to phase the planned credit cuts but to cancel them altogether. Higher than expected tax revenues and lower interest payments on government debt opened up extra fiscal wriggle room which also enabled the Chancellor to ease back on the scale of spending cuts in other areas and in some cases to avoid cuts altogether, as in frontline policing in the face of heightened fears of terrorist attacks.

The Treasury are still targeting a £10bn surplus on the public finances by the end of this parliament, as stated in last July’s budget. The latest forecasts show a £73.5bn deficit in the current financial year, dipping to a shortfall of just £4.6bn in 2018-19, and turning into a surplus of £10.1bn by 2019-20.

As ‘protected’ departments, health, defence and international development budgets were spared the axe. But many departments are now having to manage deep cuts in their budgets for day-to-day spending: 37% for the Department for Transport, 17% at the Department for Business, Innovation and Skills, and 14% at the Department for Work and Pensions, for example.

At the Ministry of Justice, with a 15% cut in its budget, there will be another round of headcount reductions (including staff employed by the Legal Aid Agency). But the position could have been worse, as Michael Gove told the Lords’ Constitution Committee when he gave evidence to them recently.

It was put to Mr Gove that, in his combined role as Lord Chancellor and Secretary of State for Justice, he had to be a bit of a political acrobat or contortionist. The committee reflected on the role of the Lord Chancellor as a Minister with a special responsibility for the rule of law over and above that of other Ministers and that of a departmental Minister, with responsibility for thousands of civil servants, including those administering the court service and others who look after those in the care of the prison service. As a senior member of the Cabinet, Mr Gove was also responsible for making the case for broader government policy in the cut and thrust of debate both in the arena of Parliament and on the media.

In the context of the continued, and apparently relentless, pressures on access to justice, fiscal austerity, successive cuts in legal aid and recent curbs on judicial review, how did the Lord Chancellor and Secretary of State for Justice manage the conflict between access to justice and the rule of law on the one hand and cuts in his departmental expenditure on the other? Was he given extra clout when negotiating with the Treasury because of his double role, the committee wanted to know?

It says much for the strength of the relationship Michael Gove enjoys with David Cameron and George Osborne, coupled with the depth of the previous cuts in legal aid in the last Parliament that, as a result of the latest Spending Review settlement, planned legal aid expenditure has remained virtually untouched. Furthermore the Ministry’s planned investment of £700m in IT infrastructure improvements in the court service, to help deliver the recommendations of the Leveson review of efficiency savings in criminal proceedings, remains intact.

It was an adroit performance before a heavyweight committee, ranging widely over human rights reform, constitutional change, the rule of law and administration of justice, of which his predecessor, Chris Grayling, would have been incapable.

The day after Michael Gove’s appearance before the Constitution Committee, he announced to the Magistrates’ Association his decision to scrap the criminal courts charge. The change takes effect on Christmas Eve. Introduced by Chris Grayling, this mandatory charge would have been paid by convicted criminals on top of fines, the victims’ surcharge and prosecution costs irrespective of their ability to pay, with a preferential rate as a reward for a guilty plea in the magistrates’ court. For those who proceeded to the Crown Court, there was the risk of a fee of £1,200 for those found guilty, creating a financial disincentive to risk the uncertainty of a jury trial. The charge would have created a perverse incentive for the innocent to plead guilty. In these ways, Mr Grayling asserted that criminals would pay their way. But the Lord Chief Justice thought the charge imperilled a core principle of Magna Carta. The Lord Chancellor agreed.

Scrapping the criminal courts charge at the end of last year was another reversal of Mr Grayling’s flagship policy initiatives by Michael Gove. Restrictions on prisoners’ access to books were lifted. Plans for a ‘secure college’ for young offenders which were criticised by penal reformers were abandoned. The Ministry’s plans to bid for a Saudi prison contract through its commercial arm, Just Solutions International, set up to sell departmental expertise to overseas governments, were also scrapped.

It now falls to Chris Grayling as Leader of the House of Commons to tackle ‘English votes for English laws’ (EVEL), an initiative apparently designed to shore up the United Kingdom’s unravelling constitutional framework. Every MP will continue to have a vote on every Bill before the Westminster Parliament. But where the House of Commons considers a new Bill which only affects England, and where the power to make that law has been devolved elsewhere, a new parliamentary procedure will apply. The Speaker of the House of Commons will be responsible for certifying which Bills, or parts of Bills, meet this test.

The procedure will see English, or sometimes English and Welsh, MPs being asked for their consent to the provisions which meet this test. They will do this in a new stage of parliamentary consideration called the ‘Legislative Grand Committee’, which will enable them to debate the proposals and secure their consent to them.

It is intended that new laws are made with the agreement of the whole House of Commons, but that English (and Welsh) laws will be made with the consent of MPs who represent those parts of the country. As Speaker Bercow has commented, the Commons is in experimental territory. It may well be necessary to experiment by adjusting the arrangements as the new regime develops. Since the Scotland Bill (devolving further powers to the Scottish Parliament) is still going through the Westminster Parliament, the Speaker’s assessment will strike many as remarkably prescient.

Mark Hatcher, Special Adviser to the Chairman of the Bar

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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.