WestminsterWatch - June 2013

With responses to the Ministry of Justice’s consultation paper on legal aid flowing in, Toby Craig considers the changing landscape

The only game in town
This month’s WW will be landing on desks just as the finishing touches are being applied to a large number of responses to the Ministry of Justice’s Transforming Legal Aid consultation paper. One could be forgiven for thinking that was the only game in town. One could also be forgiven for hoping that the various consultation responses are read with more care and attention. It hasn’t always been the case.

The 4 June deadline simply marks the close of another chapter in a long-running saga which, over the course of successive governments has seen the degradation of funding of the justice system, both civil and criminal. In turn, it has seen the open diminution in the quality of the system itself. At least the LASPO changes, by definition, as an Act of Parliament, were introduced by primary legislation so both Houses had an opportunity properly to scrutinise it (in theory if not always in practice). However, the latest changes require no such scrutiny by Parliament, yet threaten fundamental changes to the way in which justice in this jurisdiction is delivered. The consultation itself is silent on quality, whilst trumping innovation, value for money and efficiency. Levels of quality will change. Nobody thinks that infers a change for the better. It would be wrong to demonise the current Government. This reflects a trend which has been present for some years. No political party has clean hands.

The next instalment of the narrative will run from June through to September, when the Ministry of Justice is expected to announce its final thinking on the outcome of the consultation. Whilst we wait with a mixture of dread and anticipation, a sense is emerging that whilst the Government is determined to achieve the financial savings outlined in its proposals, it remains willing to consider other, and better, ways of making those savings. To some degree, that puts the ball in the respondents’ court to come up with other ways of saving money from the system, but there is little residual goodwill and trust that any such savings would not be banked with the proposals implemented anyway. One wonders why, if this is right, the Government didn’t opt for a wholesale review of the legal aid system as a more sensible starting point. The piecemeal implementation of Lord Justice Jackson’s proposals do, however, show that even wholesale reviews don’t always lead to sensible or holistic implementation mechanisms. But a review, at least, might have provided some evidence to drive future policy. Instead, we have to suffer claims that ‘the public has lost confidence in the legal aid system’ with no data at all to back them up. It is a disappointing feature of the austerity culture that whilst undoubtedly public spending needs to be curtailed, there seem to be very few principles which cannot be slain on the altar of fiscal discipline. History will judge the period of political decision making when the question, too often, was ‘how much will removing this save?’ rather than ‘what will happen if we remove it?’ or better still, ‘should we?’. History will also judge whether the long-term savings were quite as genuine as those which were first anticipated. Sadly, it may be too late by then.

A light programme
The main business of Parliament picked up again, as it was opened formally with all the pageantry, pomp and circumstance we have come to expect from the Queen’s Speech. Black Rod dusted off his full regalia for his most prominent annual outing. Once again, the speech itself was slim, with the business of cutting the deficit remaining centre stage. Having entered significant health, education and welfare legislation on to the statute books, it is perhaps not surprising that the legislative load is light. There are a number of Bills which will be of particular interest to sections of the Bar, though, thankfully, it looks as though there is nothing to rival LASPO this time around (why bother when such extensive changes can be made without the need for Parliamentary scrutiny?). The Children and Families Bill (carried over from the last Parliament), Anti-Social Behaviour, Crime and Policing Bill, Intellectual Property Bill (implementing the single EU Patents Court) and Draft Consumer Rights Bill are just some of those which are likely to attract the attention of these pages over the coming months. With the Draft Communications Bill pulled late in the day, it seems clear that securing cooperation across the Coalition is becoming more difficult as the General Election draws closer.

The elephant in the room
Of course, as business goes on in the Westminster Village, one of the key players, with no current Commons representation, is missing. Nigel Farage’s UKIP scored an extraordinary 23% share of the national vote in local elections. Whilst the Party has done well in European elections, this is the most noticeable surge in a domestic poll. For too long, mainstream parties were complacent about the public’s interest in UKIP’s message. Farage has sought to develop a straight-talking, common-sense approach, evoking nostalgia for a fast-disappearing ‘Great’ Britain. The Prime Minister’s must be rueing his dismissal of the Party as ‘Loonies, fruitcakes and closet racists’. Whatever the truth is, they are simply filling a vacuum which all of the main parties have left behind and the Conservatives, Labour and Liberal Democrats will have to respond to that, for they are all losing votes.

The question of the UK’s membership of the EU, once again, is threatening to split the Conservative Party down the middle and UKIP is taking full advantage. But having seeped into the mainstream consciousness, the issues which UKIP is using its new platform to raise go beyond the old issue of Europe. They are also taking advantage of the perceived failure of the Conservative leadership to address the concerns of its base, with Tory grandees like Norman Tebbit issuing a clarion call to listen to its defectors. The vexed issue of equal marriage, which is infuriating many grassroots Tories, is just one example. The tensions between seeking the centre ground, the quest for ‘detoxification’ and ensuring not to alienate the party faithful are beginning to show.

Nick Clegg prophesised before the last election that “the old duoply of British politics is dying on its feet”. It may be a pipe dream, but UKIP will be hoping he was more right than he dared imagine.

Toby Craig is the head of communications at the Bar Council.