Westminster Watch

With Parliament dissolving for the election, Mark Hatcher looks ahead to the manifestos and the importance they place on preserving our system of justice.

The dissolution of the Westminster Parliament on 30 March means that, until a new Parliament is elected on 7 May, there are no MPs for 25 working days.

They revert to being members of the public, some for a short interval others perhaps for rather longer or indefinitely. Meanwhile the Government retains its responsibility to govern. Ministers remain in charge of their departments until after the result of the election is known and a new administration is formed. In the meantime the rest of the country goes about its normal business. During the pre-election campaign period, known as “purdah”, Whitehall is largely 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. During this period of relative calm civil servants scrutinise the party manifestos and prepare introductory briefs for their new ministerial teams.

The first Conservative Party manifesto, the Tamworth Manifesto written 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, has mushroomed. Each manifesto gives its diagnosis of the state of the nation and offers a prescription for change to tempt the electorate which, its authors hope, will avoid creating too many hostages to fortune. Outside the Westminster bubble, it is unclear whether the electorate actually read and absorb these texts. But they do help the media to frame the campaign debate. They also enable officials to gain some insight into political aspirations and consider how these might be fulfilled in the cool light of the morning after the election result becomes clear. As the former Democrat Governor of New York, Mario Cuomo said, “you campaign in poetry; you govern in prose.”

Elections should promise competing visions and alternative futures. But there seems to be a growing disconnect between the constitutional and political arrangements of an earlier age and the social and economic realities of today. Disengagement from the electoral process, especially among younger voters, appears to be widespread. Neither of the two main parties that have dominated postwar politics – Labour and Conservatives – have been able to develop compelling, competitive narratives. The United Kingdom of 2015 feels fractious and disunited, and a rather pinched place.

In the year in which we celebrate the 800th anniversary of its sealing, it is clear that Magna Carta continues to carry huge, intuitive emotional weight in our national consciousness. It rouses us when our liberties and rights appear to be threatened. It symbolises our commitment to their preservation, as Anthony Arlidge and Igor Judge justly claim in their book Magna Carta Uncovered. So it is right to reflect on what has become of the undertaking given by King John to the barons at Runnymede, “To no one will we sell, to no one will we deny or delay right or justice.” 

Not so long ago it fell to the Minister of State for Justice, Lord Faulks, to justify the increase of almost 600% in enhanced court fees in the civil courts, in the face of a “regret motion” tabled by Lord Pannick from the crossbenches. The Minister reminded Peers that the normal principle for charging for public services was that fees should cover the full cost of delivering the services. However, he went on to remind the House that the Anti-social Behaviour, Crime and Policing Act 2014 had provided the Lord Chancellor with the power to prescribe fees above the cost of providing court services to litigants.

The fees order was approved after a debate in which none of the speakers from any part of the House had a word to say in its favour, apart from the Minister. As a result, if you want to sue for between £10,000 and £200,000 you will have to make an upfront payment of 5% of the claim. To claim £200,000 you will have to make a down payment of £10,000. This does not seem like a fair, reasonable or proportionate exercise of the statutory power. How many small traders whose cash flow is the life blood of their business or personal injury claimants, for example, could put up these sums in advance of bringing their claims? Is this not selling justice, contrary to Magna Carta? The Government hopes to recoup £120 million from their imposition but the likely outcome will be to deter litigation and thereby deny injustice.

The quest for savings to drive down public expenditure is an understandable imperative in a period of fiscal austerity. As Labour frequently reminds everyone, Conservative-led Coalition expenditure plans are only half way through implementation. But justice is not a commodity. The justice system is not like any other public service. It underpins the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law on which our way of life depend.

The price we pay for justice should reflect the value we place for living in a just and civilised society. This is not to say that the resources allocated to justice should be limitless. But it does mean that the administration of justice should be properly resourced in order to avoid a denial of justice or outcomes which cannot possibly be said to be just. Expenditure on the justice system can, and it might be argued, should, therefore be a matter on which government and citizens can take pride. Where is this articulated or recognised by any of the political parties in their manifestos or their visions for the future?

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After a career in the House of Commons spanning 42 years, the Chairman of the Justice Committee, Sir Alan Beith, is retiring from the Commons on the dissolution of Parliament. As the Liberal, then Liberal Democrat member for Berwick-upon-Tweed since 1973, Beith was Deputy Leader of the Liberal Democrat Party from 1992-2003. He chalked up membership of no fewer than twenty select committees. During his tenure of the Justice Committee over the course of two Parliaments the committee contended with a varied diet that became dominated latterly by what the MoJ coyly refers to as the “Transforming Legal Aid” agenda. Among the committee’s reports published shortly before the dissolution was one on the impact of changes to civil legal aid under the LASPO Act. The committee concluded, unsurprisingly, that the Act had harmed access to justice. It was echoing findings from the National Audit Office study and the conclusions of the recent Public Accounts Committee report on civil legal aid. A depressing note on which to end the Parliament but perhaps the Prime Minister will reward Sir Alan in the dissolution honours with a place in what, for some, is still the ultimate sunset home.

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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.