Westminster Watch

Campaign in poetry; govern in prose? As Parliament is mothballed, Mark Hatcher examines the main parties’ pledges on justice and the reality behind the rhetoric

For the past few weeks the Palace of Westminster has felt mothballed. 

Until a new Parliament is elected on 8 June, there are no Members of Parliament at Westminster and there are currently few facilities available to attract Peers. Gangs of workmen have been carrying out essential repairs, doing what they can to maintain the facilities of this crumbling edifice.

When the Queen made a proclamation on 3 May at the meeting of the Privy Council at Buckingham Palace, the Parliament which had begun two years ago was dissolved. A new one has been directed to meet on 13 June, for the swearing in of Members and the election of the Speaker of the House of Commons. The new government’s legislative and policy programme for the next 12 months will be outlined in the Queen’s Speech to be delivered on 19 June.

In the meantime, during the election period the Queen’s government must go on. Ministers, who are appointed by the Sovereign on the advice of the Prime Minister, remain in charge of their departments until after the result of the election is known and a new administration is formed.

As the rest of the country goes about its normal business, the business of government during the election campaign has a ‘special character’, to use the description in the Cabinet Office guidance issued to civil servants. During ‘purdah’, Whitehall is largely running on auto-pilot. Ministers are expected to exercise discretion in initiating any action of a continuing nature or taking policy decisions on which an incoming government could take a different view. Many of them are putting in only occasional appearances at their departments, while spending time on the stump, getting alongside voters and supporting their political colleagues.

During this period of relative calm (there being no Parliament to which Ministers are currently accountable) civil servants review the party manifestos and prepare introductory briefs for the incoming ministerial teams.

The first Conservative Party manifesto, addressed to the electors of Tamworth by Sir Robert Peel in 1834, was a little longer than this column. It contained no detailed policies. Since then the number of policy pledges, often foreshadowed at party conferences (or leaked in advance), has mushroomed along with word and page count.

A cursory examination of party manifestos in 19 general elections since 1945 reveals a familiar pattern: a diagnosis of the state of the nation and prescriptions for change expressed in terms of well-upholstered generality which seek to tempt the electorate with promises which, their authors hope, will avoid creating too many hostages to fortune. Early manifestos read more like credal statements than the contemporary effusions of political marketing experts.

Manifesto sections on justice, which are invariably placed well down the lists of priorities for government, often begin with commitments to uphold the rule of law or the importance of safeguarding access to justice. How these laudable objectives might be achieved in practice are addressed with varying degrees of specificity and realism. Assessed against headline spending priorities, they often suggest the reality behind the rhetoric will be different. As the former Democrat Governor of New York, Mario Cuomo once said: ‘You campaign in poetry; you govern in prose.’

This pattern is reflected in the three main party manifestos.

Labour launched an unashamedly high-tax-and-spend-and-borrow prospectus (For the many not the few). At 22,500 words it is nearly as long as the ‘longest suicide note in history’, Gerald Kaufman’s memorable description of Michael Foot’s 1983 manifesto. Jeremy Corbyn’s call to arms details a radical programme harking back to 1960s State Socialism. For Labour, justice has become the preserve of the rich. Budget cuts have ‘deprived thousands of fair resolutions’. Justice has been eroded by ‘poor decisions of privatised assessments’, by the withdrawal of legal aid, by delays from overcrowded courts and increases in court fees.

Labour proposes a review of judicial appointment processes to ensure greater diversity and to re-introduce funding for the preparation of judicial review cases. On public funding of legal services, Labour is cautious. It will ‘consider’ a number of legal aid changes after receiving recommendations from Willie Bach’s long-running review. It pledges to bring forward measures already in hand such as prohibiting the cross-examination of victims of domestic violence by their abusers and to extend the use of IT in the court service, continuing the Conservative government’s courts and tribunals reform programme. On court fees, Labour will not prevent the Ministry of Justice from raising money to pay for court services but it will restrict the amount by which such fees may be increased (which could prevent increases in one area being applied to subsidise or offset costs in another part of the court service).

The Liberal Democrats, hoping to recover from their disastrous performance in the 2015 election when they lost 49 seats and were left with just eight MPs, have ruled out striking any coalition deals after the election. Their 95-page manifesto (Change Britain’s Future) puts Brexit centre-stage and promises to give the electorate the final say in a referendum on a deal with the alternative option of staying in the EU.

On criminal justice issues, the Lib Dem proposals include securing funding for criminal legal aid from ‘sources other than the taxpayer’, including insurance for directors and changes to restraint orders. On civil and family justice, among the Lib Dems’ proposals which pick up the Bar Council’s calls for action in the wake of Brexit, are retention of international arrangements for jurisdiction and enforcement of judgments and for family cases currently enjoyed under the Brussels I and II Regulations and the Hague Convention on Child Abduction, together with a review of LASPO and a reversal of court fee increases.

The Conservative manifesto (Forward, Together) runs to 84 pages and just one photograph, portraying the Leader in strong and stable leadership mode. On justice it is remarkably thin. The manifesto seeks to reassure the electorate that Conservatives really do ‘cherish our strong and independent judiciary’ who are respected as the finest in the world. They recognise the legal services sector as a major exporter and for underpinning the UK’s successful, wider professional services sector. Without condescending to specifics, the party promises to continue court modernisation, improve the court estate and facilities and ‘make it easier for people to resolve disputes and secure justice’, a nod to the courts and tribunals reform with the spread of online justice. Ways to improve the family justice system will be explored. In a tantalisingly vague reference, family courts will be expected to recognise the value of mothers and fathers and ensure parents face up to their responsibilities. Human rights have been given a reprieve. The Conservatives promise that the UK will remain a signatory of the European Convention on Human Rights, for the duration of the next Parliament. When the process of leaving the EU is over they will settle down to ‘consider our human rights legal framework’.

Outside the Westminster bubble, it is unclear whether the electorate actually bother to read and absorb the manifestos. But there is no doubt they help the media to frame the campaign debate. They also enable Whitehall to gain some insight into the politicians’ aspirations and to consider how these might be fulfilled in the cool light of the morning after the election result becomes clear.

Of course, elections are not won just on manifestos and pledge cards. They turn on the credibility of the person who is the party candidate to be Prime Minister. It looks like Labour and the Liberal Democrats face the biggest challenge of persuading the electorate that their man can be trusted to rise to the challenges facing the next Leader of Her Majesty’s Government in what looks like a very uncertain future for the United Kingdom.

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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.