Westminster Watch

Mark Hatcher reports on the parallel universe of the party conferences – is the writing off the wall for the Tories as Labour appears to steal a march on legal aid?

Having taken time out in the parallel universe of the party conferences, MPs have returned to the reassuring rituals of life at Westminster. They survived a surfeit of cold buffets and warm wine in overheated rooms in Bournemouth, Brighton and Manchester and many will now be wondering what the future holds.

Labour’s conference provided an opportunity to build on what was, for them, a successful general election campaign, albeit that Jeremy Corbyn remains Leader of the Opposition. It sought to present what Corbyn described, in a humdinger of a speech lasting 75 minutes, a ‘modern, progressive socialist party’ at work, as a government-in-waiting, delivering a Britain ‘for the many not just the few’.

Much of the power of Corbyn’s conspicuously left-wing address to the party faithful came from capitalising on Tory mistakes. Although singing from much the same hymn sheet as last year, with a heavy emphasis on nationalisation, infrastructure improvement, housing and an end to austerity, the pitch of Labour’s elected leader was stronger and more confident. It was also uninhibited by concerns about the national finances. Corbyn’s support for scrapping the public sector pay freeze and opposing police cuts introduced during Theresa May’s spell as Home Secretary will have bolstered his support beyond the conference hall. Overall the party appeared more unified and under tighter control following Corbyn’s election as leader two years ago and his survival in last year’s leadership challenge.

‘I promise you we will do politics differently, and the vital word is we.’ In words that would have resonated with many who are concerned about the marketisation of justice, he went on: ‘Our rights as citizens are as important as our rights as consumers.’ Power, Corbyn said, must be devolved to communities, ‘not monopolised in Westminster and Whitehall,’ with politicians ‘truly accountable to those we serve’.

The Labour leadership does give the appearance of ‘understanding justice’. It sees access to justice as being just as important as the NHS, education and welfare benefits. Both Corbyn and Shadow Chancellor, John McDonnell were members of the Commons Justice Committee during the Conservative-led Coalition, often sitting next to each other in committee meetings. They both have an instinctive feel for restoring cuts in legal aid and rebuilding this pillar of the Welfare State.

A Fabian Society fringe meeting provided a timely opportunity for former Labour justice minister, Willy Bach to unveil the findings of his inquiry into access to justice which Corbyn had commissioned within days of becoming leader. The Bar Council was among those who contributed evidence to the inquiry.

Lord Bach appears to have undergone a Damascene conversion and frankly lamented the cuts to legal aid which he had imposed when Gordon Brown was Prime Minister.

Two key recommendations of Lord Bach’s report, The Right to Justice are the enactment of a new right for individuals to receive reasonable legal assistance, without costs they cannot afford, and the establishment of an independent Justice Commission to promote, develop and enforce that right.

Although not party policy, Shadow Justice Secretary, Richard Burgon indicated that the Bach Commission’s recommendations (many of which appear to have benefitted from input from retired Court of Appeal judge, Sir Henry Brooke) would feature in the party’s next manifesto. It will fall to the recently appointed Shadow Legal Aid Minister, Gloria De Piero to help build support in the party for these recommendations.

How far it will be possible to build cross-party support for the Bach Commission’s findings is a moot point. With the two main parties at each other’s throats on so many issues at Westminster the prospects do not look good.

For the Conservatives, if ever there was an opportunity for the party to come together it had to be in Manchester. But everything that could go wrong did go wrong. Just below the surface dissension and disunity stalked the hotel bars and corridors. Theresa May’s cabinet is united, but mainly in their desire to succeed her. Fuelled by Boris, a low-energy conference speech by Philip Hammond (‘Spreadsheet Phil’) and the ubiquitous presence of Jacob Rees-Mogg, the Tories seemed all over the place. The PM’s speech was earnest and sincere, and on paper it offered elements of a defence of Conservative ideas. But it was thin on policy and the constraints imposed by Brexit and the state of public finances were clear. As letters fell off a sign behind Theresa May proclaiming the Conservatives were ‘building a country that works for everyone’ it seemed as if the writing was on (or rather off) the wall about the government’s ability to survive.

In the febrile atmosphere that pervades Westminster talk of a re-shuffle is rife and the need to bring on younger members. Having declined a position in her initial government, Dominic Raab returned to the Ministry of Justice in June, as the Minister of State responsible for legal aid, and is widely tipped for further promotion.

Among others thought to be well placed to join the ministerial payroll are barrister Members, Victoria Atkins (formerly of the Home Affairs Committee), Victoria Prentis (a member of the Justice Committee) and Lucy Frazer (PPS to the Lord Chancellor and Secretary of State for Justice).

In the meantime, Brexit dominates parliamentary business at Westminster. As I write, the committee stage of the EU (Withdrawal) Bill was expected to begin its committee stage on the floor of the Commons. But so many amendments, from all sides of the Commons, have been put down – the notices of amendments runs to over 130 pages – that the business managers have decided to postpone the start of this stage of the Bill, which is expected to last more than eight full days of scrutiny. The fact that the government has decided to press pause on this key Bill in the Brexit process is a welcome acknowledgement of the complexities and difficulties of this legislation.

The powers the government is seeking to take to give effect to the Bill are excessive, as the former Attorney General, Dominic Grieve QC has argued. Henry VIII clauses allowing the government to change almost any law of the land by statutory instrument, if needed, must be properly restricted. Parliament must insist on a bespoke process of scrutiny for such statutory instruments. The current arrangements for scrutiny of over 1,000 statutory instruments are simply not up to this task. Grieve has therefore tabled amendments designed to achieve a consensus in favour of change.

Other issues of major legal and constitutional significance in the Withdrawal Bill, with which the committee stage will have to deal over the coming weeks, are how EU law (much of which was not made by the UK Parliament) which is imported into our legal system will operate and be interpreted. As matters stand, equality laws that are now seen as being of fundamental importance in the UK will no longer enjoy the protection which EU membership gave them and will be at risk of repeal by statutory instrument under the Bill as drafted.

After Theresa May’s conference speech setback, the Chancellor of the Exchequer is under pressure to restore the party’s image and assert control over the agenda on intergenerational fairness on which Labour has stolen a march. The Budget, to be delivered on 22 November and underpinned by the latest Office for Budget Responsibility forecasts, will be delivered against the background of deteriorating public finances and increasing pressure on several fronts to relax public expenditure constraints. By tradition, the Chancellor, unlike Ministers at the despatch box at any other time of the year, may drink alcohol if they wish. Ken Clarke chose whisky, Geoffrey Howe opted for gin and tonic. Gladstone asked for sherry and a beaten egg. Whoever delivers the Tories’ budget statement in a few weeks’ time will need a very stiff drink indeed.

Author details: 
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.