The NHS and the economy may dominate the headlines, but for the politicians who speak for their party on law and justice, feelings are running high heading into the election. Eduardo Reyes reports.
The general election date has been long-known but the final days of this parliament were no different to any other. MPs must vacate the palace for the duration of the election, so as they rehearse lines relating to their record in government and opposition, haggle over statutory instruments and worry about opinion polls, they are also clearing shelves and filling boxes. Here the parties set out their stall.
Liberal Democrats: The Rt Hon Simon Hughes, minister of state
Simon Hughes’s wristwatch is set one hour ahead. It is unclear if he started the day in a different time zone or if it is his only hope of keeping roughly to time.
The former barrister will have served one year and four months as a minister by the time of the election, having succeeded Lord McNally as minister of state.
‘Looking back, there are a set of things we’re very pleased with in government,’ Hughes reflects, ‘things that I as a civil liberties person have a cherished interest in.’ He lists the Freedoms Act, stopping both the introduction of ID cards and the compilation of a national DNA database. Also stopped were fingerprints being taken in schools without parental permission. ‘We’ve halved the period for detention without charge, and ended child detention for immigration purposes – these are civil liberties gains,’ he adds.
Hughes also lays claim to the first change in the rehabilitation of offenders legislation since the 1974 – reducing the period for which less serious criminal convictions are on record and, earlier this month, making it illegal for employers to ask for more than the legal limit on criminal records.
‘We’ve done this in difficult times, against the background of an increasing terror threat,’ he says. ‘We’ve put in place good civil liberties protections. That’s included tough new oversight of the security services… and time limits on [security] exemptions measures – some of which will expire next year.’
He finishes the list with ‘resisting the Tories on added surveillance powers’. His party gave him a rough ride over ‘secret courts’ – one member using a party conference debate to resign from the podium. ‘On closed material proceedings,’ Hughes answers, ‘we are committed to reviewing these, to ensure they apply to even fewer cases in the future.’
Freedom of information (FoI) is emerging as an area of competition between the Lib Dems and the Labour party. Hughes cites progress in extending the number of organisations that must answer FoI requests – UCAS was one of three added to the list of bodies subject to FoI this week. ‘I’m keen we see a manifesto commitment on FoI to extend it to areas where private providers carry out public work, and private sector organisations where the public have no choice – such as utilities,’ he says.
‘Reforms have been clearly successful in the family court. We’ve seen a significant reduction in the time taken for care cases – down from a year to six months.’ And he is unapologetic about steering parties in family cases towards mediation in the first instance. ‘Seven out of 10 cases that go to substantive mediation succeed,’ Hughes notes. He says his party is committed to public funding for DNA tests in family cases, where needed.
On having more litigants in person (LiPs) in court, Hughes acknowledges the challenge they present, but cites funds secured to support LiPs with ‘advice, both general and legal’, and improved references to pro bono provision.
Chancery Lane manifesto
The Law Society’s 2015 general election wish list urges the next government to:
- Ensure every individual has effective access to justice.
- Protect and enhance the role of English and Welsh law.
- Enable legal services to make their major contribution to UK plc.
Specific policy recommendations include:
- A review of cuts and changes to legal aid early in the next parliament.
- Restoration of welfare benefits advice funding.
- Immediate repeal of the civil residence test.
- Freezing the small claims limit in personal injury pending assessment and consider reducing the general limit back to £5,000.
- A root-and-branch review of the criminal justice system.
- Defence of the Human Rights Act.
- Ensure regulatory regime maintains the profession’s independence.
- Further invest in digital infrastructure for
- the courts.
- Develop a new Tax Law Charter to support certainty.
- Ensure business migration policy supports the legal sector’s competitiveness.
The full manifesto can be read at the Law Society website.
The court system needs far-reaching reform to make it fit for purpose, Hughes argues (‘a big project – whoever is in power will have to face that’). In the future, he believes: ‘A court will be where you settle a dispute before a judge – and much more.’ Sheffield’s ‘new Model Court’, launched last autumn, shows the direction of travel, he says. ‘We need courts that are fit for purpose.’
Hughes is impressed with the approach of the Family Drug and Alcohol Court, and promises: ‘The Lib Dems would wish to pilot drug and alcohol courts more widely as speedily as funding allows.’
Magistrates should be ‘ticketed for a certain area, so they know it – and they need to have available the full range of community and restorative orders’. Decision-making in tribunals need to be improved, Hughes says: ‘Our tribunals need to get decisions right more often at first instance.’
On changes to civil procedure brought in by the Legal Aid, Sentencing and Punishment of Offenders Act – notably the Jackson reforms, Hughes says: ‘In the first year of a new parliament, we must review changes made in the last parliament, and if there are areas where access to justice is not being achieved.’
Whatever the outcome of such a review, he says: ‘There won’t suddenly be lots more money for publicly funded lawyers.’ That places the emphasis on finding alternative ways to ‘make sure we are not depriving citizens of the ability to get into court’. Here he makes the argument for a more continental-style form of civil justice: ‘Behind all of this I’m clear there is a big question for civil justice – how it could be less adversarial and how much more inquisitorial.’
He insists that limits to judicial review are less unpalatable than at first draft, having been amended in the Lords, but he commits the party to a review of the changes post-election. There must be, Hughes suggests, ‘a way to recognise a procedural irregularity, without the whole process needing to go back to the beginning’.
There is a clear gap between Hughes and his Conservative coalition partners on human rights, representing ‘a real battle’. He says: ‘The attorney general has said some extraordinary things in the House of Commons – that we can withdraw from the European Convention on Human Rights and still have the highest standards of rights. How can we hold our head up in the world and talk to other countries about human rights when we have withdrawn from the convention?’
On criminal law, Hughes’ preoccupation is sentencing. ‘We’ve seen a mandatory minimum sentence brought in for more crimes,’ he says. By contrast: ‘Liberal Democrats believe in a maximum sentence [and beyond that] judicial discretion.’
Finally, he signals support for colleague Danny Alexander’s decision to target ‘professional enablers’ in tax evasion cases.
Labour: The Rt Hon Sadiq Khan, shadow lord chancellor
The shelves are clear in shadow lord chancellor Sadiq Khan’s parliamentary office. There is a computer, a pot plant, arm chairs, a bag of rubbish and Khan, who is in confident form.
Khan does not say it directly, but gives the impression that Labour has a stronger and less-complicated narrative on law and justice policy than it did in 2010. ‘I’ve never claimed Labour had a perfect record on justice from 1997-2010,’ Khan begins. ‘But we introduced the Human Rights Act, FoI, supported the European convention, and tried to make the judiciary more diverse and the process for appointing judges and QCs more transparent.’
A comparison with the Lib Dems, with whom he most closely competes for the progressive vote come 7 May, is one where the Labour party fares better by his account: ‘Every single policy emanating from this government has been a Tory and a Liberal Democrat policy. Liberal Democrat crocodile tears over LASPO, secret courts and judicial review won’t wash with the public. And changes to criminal legal aid, court fees – all happened with Labour opposing them.’
In the last year, Khan has confirmed that a Labour government would not reverse substantive cuts to the scope of legal aid. He is at least able to point to a broad contrast in spending plans between Labour and the Conservatives. ‘We now know from the budget that [the Conservatives plan] extreme cuts in the first two to three years of the next parliament.’
Alan Mak, Conservative
Alan Mak, a former corporate lawyer at magic circle firm Clifford Chance, sees a synergy between the roles of MP and lawyer. ‘Both roles are about speaking up for and representing people who rely upon your expertise and advocacy skills,’ he says. ‘If I’m lucky enough to be elected to parliament, my understanding of how law is made, interpreted and applied is sure to be an advantage, too.’
Mak, the Conservative party’s prospective parliamentary candidate for the Hampshire constituency of Havant, says that he has long been involved with community groups and charities. ‘I led Clifford Chance’s public policy group in London and helped launch the firm’s charitable fund.’
He was also a school governor and is an active supporter of the Magic Breakfast charity, which provides breakfast – ‘fuel for learning’ - to 16,000 otherwise hungry children in 430 schools.
What would be his priorities if elected to parliament? ‘A strong economy, successful schools and vibrant communities,’ he replies. ‘We should aim to foster a globally competitive economy, with professional and financial services playing an important role. Schools should prepare pupils for the world of work and for their place in a vibrant civic society.’
Jo Stevens, Labour
Jo Stevens, the first woman solicitor at national firm Thompsons to become a director, is the Labour party’s prospective parliamentary candidate for Cardiff Central. She has been politically active for around 30 years, but feels that now is the time to enter parliament. ‘You can only take things so far through litigation,’ she says.
She tells the Gazette that there is considerable ‘overlap’ between practising the law and being a constituency MP. ‘In both callings, you need to win the trust of your clients or constituents quickly. You need to be honest about what you can and can’t do. Never making promises that you can’t keep.’
So what has 26 years as a solicitor taught her that, if elected, she can apply to her new job? ‘Standing up for people,’ she replies.
What one issue would be her priority if she were given a free hand in parliament? ‘Addressing low pay and job insecurity and the enormous equality gap that they create. An economy based on low wages and zero-hours contracts piles inequality upon inequality. It affects every aspect of people’s lives. I want to see the living wage made a reality, not just an aspiration. I want to end zero-hours contracts and make job security a platform upon which to build better lives.’
James Fearnley, Liberal Democrats
Although he says he hates quoting a former prime minister, James Fearnley, a solicitor and the Liberal Democrat prospective parliamentary candidate for Croydon Central, tells the Gazette that ‘education, education, education’ will be his priority if elected.
Fearnley trained at international firm Jones Day. ‘Legal training teaches you to analyse facts, make an argument and advocate for a cause,’ he says. ‘It teaches you that very often the devil is in the detail.’ What persuaded him to enter politics? ‘I’ve always enjoyed public service - I’ve been a school governor and volunteer for social mobility charities.’
He stresses that he is not someone whose only experience of life is politics. ‘I’m the son of a shopworker and a salesman. I have been unemployed. I have worked in the public and private sectors. I have flipped burgers and washed dishes. I have worked for multinationals and for SMEs. I know what it is like to have financial insecurity. And I know what it is like to lose a parent, but at the same time be thankful for the amazing service they got from the NHS. In other words, I get what keeps people awake at night.’
Jonathan Rayner interviewed solicitors seeking to enter parliament for the first time
He is unequivocal in his defence of the Human Rights Act, warning that the Bill of Rights promised by the Conservatives is a pledge to fear because it is an unknown quantity: ‘Which of the convention rights would they ditch – the right to life? Torture? Privacy? Which rights do they find so disagreeable?’
What promises should voters seek to hold an incoming Labour lord chancellor to? ‘We would reverse changes to [limit] judicial review,’ he says. ‘I know from having been in government that JR can be a pain – but being held accountable for doing things properly is no bad thing.’
Like Hughes, he makes a commitment on freedom of information: ‘We’ll extend FoI to cover private companies who do publicly funded work. More and more is being done by the private sector, so we would extend FoI to private companies working at taxpayers’ expense.’
The most recent commitment is to review court fees. And, as has already been reported, in government Labour would reverse coalition plans to slash the number of on-call, legal aid solicitors attending police stations and magistrates’ courts, and immediately review the coalition’s proposed 8.75% fee cuts.
Pressed on the restoration of legal aid, Khan says: ‘I don’t want to break promises. We’ve got to be careful about that. But I do think we can widen public access to justice.’ Trust us because you know our wider values, is the general thrust of his argument: ‘Vulnerable people will be a priority.’
He wants to address the problems people face in accessing legal aid in domestic violence (DV) cases. ‘We need to address the outrage by which people who’ve been subject to domestic violence can’t get legal aid,’ he says. ‘The DV criteria [set by the government] needs evidence. When asked for it, many don’t return to the solicitor they came to see.’ That is unacceptable, he says, ‘given that someone has suffered DV an average of 28 times before they report it’.
‘Early advice triaging’ is a policy Khan wants to find a way to deliver. That means, ‘early advice on debt, housing and benefits which can stop problems being externalised to other parts of the system’. He professes himself ‘very interested’ in proposals contained in the Low Commission that sought ‘a strategy for access to advice and support on social welfare law in England and Wales’.
On changes to the Civil Procedure Rules, Khan promises a review within the first year of office. ‘What the government did was to cherry-pick the parts of Jackson that favoured the insurance industry,’ he argues. ‘We hear from too many people with a potential claim that can’t be brought.’
With little in the way of new funding available, does Khan think that alternatives to our advocacy-based system, such as a more inquisitorial approach, should be considered? ‘[Such a change] is not realistic in the short- to medium-term,’ he answers. ‘But especially in family it’s an area to consider. The reality is that with an increase in LiPs, judges are getting more involved.’
In terms of the health of the profession, Khan is worried that progress on diversity has been undone by a combination of cuts and student debt. ‘One of the most heartbreaking things is that a law student who wants to be a social welfare adviser, or a criminal lawyer – hand on heart, can we expect them to do that with £60,000 of debt?’ This, he says, feeds through into poor judicial diversity. His last key point is to say: ‘A referendum on the EU – and the prospect of a UK exit – would be catastrophic for commercial firms in London.’
Conservative: The Rt Hon Shailesh Vara, justice minister
Former solicitor Shailesh Vara talks fluently and at speed down the phone. He tackles the issue of cuts to the Ministry of Justice’s budget head on. ‘When we got into government, we faced a very difficult economic situation and had to take tough decisions,’ he says. ‘At £2bn [a year], the legal aid budget… was not going to be left untouched.’ He is keen to note that ‘the Labour manifesto referenced cuts too’.
‘We’ll still be spending £1.5bn – one of the most expensive legal aid systems in the world.’
In family law, cuts, he insists, have also been an opportunity to review whether there is a better way to achieve good outcomes. ‘Many agree that the situation you had before, where the parties went to lawyers, then to counsel, then to court was a situation of conflict,’ Vara argues. ‘That’s why we’re hoping to create something more constructive. Mediation is better for the separating couple and for the taxpayer.’
A shift to greater use of mediation is unfinished business, he notes: ‘One difference we need is to effect a change in people’s perceptions of how you resolve disputes. People say “see you in court”. No one says “see you in mediation”. I’m confident that there can be a reduction in [cases that] filter through to court.’
In such a world, ‘we will still have a system that allows access to justice,’ Vara says.
New ways of handling disputes will not work if the courts cannot change the way they operate, he notes. Like Hughes, Vara references specific investments and reforms: ‘We have put in place court reforms that will see £75m [invested] over the next five years to modernise our courts – bringing the IT into the 21st century.’ That means ‘modernising facilities for the parties – and also for lawyers so they have the IT and facilities they need to work from court’. With better use of technology ‘vulnerable witnesses’ can give evidence away from court.
Vara also stands by the decision to increase court fees: ‘If you look at them, 90% of cases are not affected, the amount payable is a percentage [of the claim], and there is a cap of £10,000.’ For those affected, he adds, ‘charges are proportionate, and legal fees form the bulk of the cost of any case’.
Vara’s boss, lord chancellor Chris Grayling, has set out a criminal law policy that expresses pride in a system where someone committing a crime is ‘more likely to go to prison’, will be there ‘for longer’ and at ‘lower cost to the taxpayer’. It sits side by side with policies intended to reduce overcrowding, increase work and education opportunities in custody, and improve mental health care in prisons. Grayling also promises a ‘victims law’, and repeal of the Human Rights Act.
Looking at the legal profession, Vara closes by saying legal services reform and regulation is a ‘job to complete’. He says: ‘There must be as much choice as possible for the consumer.’ In achieving that, he concludes: ‘I want to ensure a reduction of regulation. That’s why I’ve asked the legal sector in what areas they are overburdened.’
Eduardo Reyes is Gazette features editor