Westminster Watch

Another nice mess the PM has gotten Westminster into: Mark Hatcher examines the intense programme designed to deliver Brexit and other Bills of note to the Bar

A coalition of chaos? Who can doubt the current mess at Westminster and not just the Eton mess following last June’s EU referendum. ‘I got us into this mess, and I’m going to get us out of it,’ Theresa May told the backbench 1922 Committee when MPs re-assembled after the general election.

Two months ago May had a thumping lead in the polls. There was a plan for Brexit designed to end the UK’s membership of the single market and customs union. Critics were denounced as democracy deniers, the Opposition was in a state of shambles and the clock was ticking after Art 50 had been triggered. But having rejected calls for a snap election, May led a disastrous campaign which she called in the hope of winning a landslide. She lost 12 seats and the government’s overall majority in the Commons. Whatever happened to ‘strong and stable’?

Labour did not win the election but Jeremy Corbyn’s campaign united the party in a way that few would have imagined possible following their drubbing in the local elections and the dire state of the parliamentary party only a few months ago. Corbyn’s Labour offered hope, fairness and a better Britain. Its ambiguity over Brexit kept Remainers on side. Labour’s manifesto may have been unrealistic but its ideals were the ones that cut through, especially with younger voters to whom Jez’s unassuming, insurgent style had an obvious appeal, backed up by a slick online operation that left the Tories on the back foot. Yet Labour was not sufficiently plausible to win power. It was behind by 800,000 votes. The party has lost its third election in a row.

The Tories won 13.6m votes, higher than Tony Blair won in three successive elections. They won the most seats but not enough to govern without being propped up by the DUP in a hung Parliament. The Caretaker Prime Minister remains at the helm but no one expects her to fight another general election.

Among those returned to the House of Commons are 16 Conservative Members who are barristers, including veteran Ken Clarke QC who becomes ‘Father of the House’. Nine Labour Members of Parliament who are barristers include newcomer, Ellie Reeves representing the safe Labour seat of Lewisham West and Penge.

Among the 23 barristers who stood unsuccessfully in the election, James Berry lost his seat (Kingston and Surbiton) to the Lib Dems and Simon Hughes failed to regain Bermondsey for the Lib Dems. The two barristers standing for UKIP were defeated, as were the two Green Party barrister candidates.

The Prime Minister has been constrained in her re-shfuffle of the Cabinet. The big beasts remain in place. She lost the opportunity to replace Philip Hammond at the Treasury and the Brexit trio (David Davis, Boris Johnson and Liam Fox) remain in their departments. A surprise move was the elevation of Damian Green (an Oxford contemporary of May, married to family barrister, Alicia Collinson) who becomes First Secretary of State, effectively Deputy PM.

As expected Liz Truss, whose grip on her brief was widely regarded as tenuous, was sacked as Lord Chancellor to become Chief Secretary to the Treasury. Although demoted, she will continue to attend Cabinet and take an interest in legal aid expenditure. When the public finances are so tight and public services are under such pressure, the role of Chief Secretary will be particularly important in helping the government to deliver on spending and performance targets, all the more so with the Chancellor being preoccupied with Brexit.

David Lidington becomes Lord Chancellor and Secretary of State for Justice, the fourth non-lawyer in succession. For many years he was Minister for Europe and has a well-developed understanding of the context in which the Bar’s Brexit interests are located. He was formerly Leader of the Commons and Lord President of the Council, a role now fulfilled by Andrea Leadsom who was replaced as Environment Secretary by former Lord Chancellor, Michael Gove who makes an earlier than expected return to the Cabinet.

At his swearing-in ceremony before the Lord Chief Justice, Lidington said he was determined to be ‘resolute and unflinching as Lord Chancellor in upholding the rule of law and defending the independence of the judiciary’. The principles of justice that he swore to protect and promote in his oath as Lord Chancellor, he said, were timeless.

At the Ministry of Justice (MoJ), the ministerial team remains largely unchanged, apart from the appointment, as Minister of State responsible for Courts and Legal Services, of Dominic Raab, a former solicitor (ex-Linklaters and Foreign Office lawyer). Raab replaces Sir Oliver Heald QC who returns to the backbenches. It is to be hoped that Raab will be sympathetic to the reform of the AGFS and other measures designed to protect and enhance the quality of criminal advocacy, on which the Bar Council has been working with the Circuit Leaders and Criminal Bar Association for several years.

Both Law Officers, Jeremy Wright QC (Attorney General) and Robert Buckland QC (Solicitor General) remain in place as does the Advocate General for Scotland, Lord Keen of Elie QC who also continues as MoJ spokesman in the Lords.

The minority government’s legislative and policy programme was unveiled in the Queen’s Speech on 21 June. Parliament will sit for a two-year session, doubling the length of a normal session in order, according to No 10, to give MPs enough time to consider fully the legislation to be brought forward to make the UK ready for Brexit.

The centrepiece of activity at Westminster will be the Repeal Bill. This is designed for the ‘smooth and orderly transition’ hoped for as the UK leaves the EU, ensuring that, wherever practical, the same rules and laws apply after exit thereby maximising certainty for individuals and businesses. The Bill will repeal the European Communities Act 1972 and convert EU law into UK law. It will create temporary powers for Parliament to make secondary legislation, enabling amendments to be made to the laws that do not operate appropriately once the UK has left the EU. It will also allow changes to be made to domestic law to reflect the content of any withdrawal agreement under Art 50. The Bill will replicate the common UK frameworks created by EU law in UK law, and maintain the scope of devolved decision-making powers immediately after exit. This will be a transitional arrangement to provide certainty after Brexit and allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed. Parliament’s scrutiny powers are going to be fully tested over the next two years.

Among other key measures designed to ‘deliver Brexit’, a Customs Bill will establish a standalone UK customs regime on exit. A Trade Bill will enable the UK to operate its own independent trade policy post-Brexit. An Immigration Bill will allow for the repeal of EU law on immigration, primarily free movement, that would otherwise be saved and converted into UK law by the Repeal Bill.

Among the other Bills of particular interest to the Bar are a Courts Bill and a Civil Liability Bill. The Courts Bill (a slim-line version of the previous session’s Prisons and Courts Reform Bill, minus the prison reforms) is intended to enable the court system to become more efficient and accessible through greater use of IT and digitisation, giving effect to the recommendations of the Briggs review. It will also end direct cross-examination of domestic violence victims by their alleged perpetrators in the family courts and allow more victims to participate in trials without having to meet their alleged assailant face-to-face, for which the Bar Council and Family Law Bar Association have been calling. The Bill also aims to provide a better working environment for judges, allowing more leadership positions in the judiciary to be offered on a fixed term basis, and enabling judges to be deployed more flexibly.

The Civil Liability Bill is aimed at what the government claims to be a rampant compensation culture and will crack down on fraudulent whiplash claims and thereby, it is hoped, reduce the cost of motor insurance.

Although a number of Conservative manifesto promises had to be jettisoned from The Queen’s Speech May had hoped for, there is a huge amount of work ahead for Westminster and Whitehall. The summer parliamentary recess begins on 20 July but it will only provide temporary respite as a weakened Prime Minister seeks to navigate a way forward through what looks like very uncertain terrain.

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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.