WestminsterWatch - April 2012

Big wins or hollow victories? Toby Craig and Charles Hale consider crunch time for LASPO

The business end of the Bill

As the Legal Aid, Sentencing and Punishment of Offenders Bill begins to round the bend preceding the home straight, the many months of hard lobbying by a significant and varied number of opponents to the Bill has begun to yield fruit. The Government has been left with a bloody nose after losing a succession of key votes in the House of Lords during the Bill’s Report Stage. What we don’t yet know, is whether that fruit will remain intact or wither on the vine as the Bill returns to the House of Commons, where a more effectively whipped and partisan lobby awaits.

On the first day of Report Stage, the Government was defeated on three amendments: to Clause 1 (to include a duty to promote access to justice), another to Clause 1 (to include a duty to provide civil legal services to domestic abuse victims), and to Clause 4 (to ensure the independence of the Director of Legal Aid Casework). Baroness Scotland QC and Lord Pannick QC introduced the amendments. Significantly, the Government committed itself to make concessions on Clause 8 (which would mean areas which are removed from scope can subsequently be put back in; an extremely important concession) and on the gateway criteria for cases involving domestic violence. These concessions are perhaps the real big ticket items as unlike the defeats, which may subsequently be overturned, we can be confident that these will change the final iteration of the Bill. They are important victories which represent some tangible recognition of the Bar Council’s lobbying and, in the case of some of the amendments, considerable drafting skills, for which the profession owes a debt of gratitude to Gordon Nardell QC, whose expertise has proved utterly invaluable.

On the second day, the Government suffered three further defeats, the first two dealt significant blows to its plans to remove social welfare law from scope and the third would maintain legal aid for expert reports in clinical negligence cases. Hot on the heels of that vote, which fell by six votes, Baroness Grey-Thompson’s proposed amendment to bring clinical negligence back into scope entirely lost by the same number, with rumours that Government whips were furiously telephoning peers to bolster their numbers in the lobbies. There was a further Government concession on funding for victims of human trafficking and domestic child abduction, which Baroness Butler-Sloss and Stephen Cobb QC had lobbied the Government very effectively on.

When WW went to press, the prospect of further defeats loomed large for the Government, and there are a number of forthcoming amendments in which the Bar is both interested and engaged. One particular issue which has recently taken on further momentum (aided by a series of supportive articles in the London Evening Standard) is whether criminal defendants’ frozen assets, at the discretion of the judge, could be used to fund defendants’ legal expenses. The argument against doing so has been that the Treasury wants to maintain the largest possible pool from which to recover funds in the event of a conviction. Given that defendants are already permitted to make some use of restrained funds (such as to pay for their children’s school fees) and the large number of cases in which confiscation orders have been unsuccessful, it seems that there may well be traction in pursuing this point.


Budgeting for the future

The Chancellor of the Exchequer will deliver the Budget Statement, the political significance of which surely continues to outstrip the noisy squabbles affecting most individual pieces of legislation, as it will provide the overview on which most Government reforms continue to be predicated. As ever, rumours abound, but as Greece fell into a moderately orderly default, aided by the IMF and EU, it is still looking down the barrel of a debt level worth around 120% of national income in 2015. All is far from rosy and a stark focus on the UK’s economic recovery will, understandably, remain the Chancellor’s primary obsession. A delayed rise in fuel duty is likely to kick in, and rumours of a ‘Mansion Tax’ on homes worth over £2m seem highly credible. The vexed issue of the 50% tax rate, will have to be addressed, though it is entirely possible that its phased or absolute removal will wait for another day.

In the run-up to the Budget, the National Audit Office published its report by the Comptroller and Auditor General into Efficiency and reform in government corporate functions through shared service centres. The Report does not paint a favourable picture. Spanning the last and current Government, significant investment has been made in Shared Service Centres, but just one has broken even. The services were found to be overly customised, which minimised the likelihood of savings and software systems (that old chestnut) have added further complexity and cost. The report found that value for money has not been delivered and £1.4bn had been spent against a planned £0.9bn. Worry not, a ‘new strategy’ is in place, which, by the way, the report found also contains significant risk. We are big believers in investing in the
future, but it is troubling sometimes quite how much needs to be spent in order to ‘save’. As Chris Mullin noted in his excellent diaries, “Gordon Brown . . Full of talk about New Labour’s fiscal rectitude. “We will save money before we spend money”. There is talk of “across the board efficiency reviews”.” We know where that got us.


Law Officers at the Bar

Many forget that the Attorney General is the Head of the Bar in Government. A moment then to reflect the role of the Law Officers and their place at our table. At the recent Bar Council Saturday meeting a debate raged about the CPS and barristers’ fees. We say raged but it was in fact a model debate with Max Hill QC leading the CBA charge and the DPP explaining his Department’s position. No punches were pulled, with the public interest providing the backdrop to both sides’ points (those who follow Twitter can track these meetings via #barcouncil for live updates). This is not the place to discuss the details. But what should be of interest is that both the AG and also the Solicitor General were present, as they invariably are, at the Saturday meeting, listening carefully to the debates, taking the Bar’s views back to Government. They are very welcome and we value their support in these difficult times.


Has spring sprung?

As spring is finally in the air, we can but hope that in the spirit of leaving the dark winter days behind, the Government will acknowledge its defeats in the Lords and accept the proposed amendments in the Commons. We can but hope...



Charles Hale is a barrister at 4 Paper Buildings and a member of the Bar Council.

Toby Craig is the Head of Communications at the Bar Council.