Westminster Watch

Parliamentary awareness of the justice crisis is building but it’s hardly registering with voters. We need to explain in vivid terms why it matters to us all, says Mark Hatcher


For much of the period covered by this month’s column, the Westminster Parliament has been (or will have been) in recess including when the Prime Minister (with the unanimous backing of the Cabinet) decided to commit UK forces to air strikes in Syria, armed with the Attorney General’s advice that such action would not contravene international law. When this issue of Counselappears in print, the business of both Houses will pause for yet another ‘periodic adjournment’, as a parliamentary recess is formally known, and the focus of the political commentariat will move onto local elections.

To judge from a spread of polls over the past few months, voters continue to be preoccupied about Brexit and health, with a cluster of other issues running into third place. Ipsos MORI’s March 2018 Issues Index showed that close to half the public have Brexit (47%) and the NHS (46%) as big issues facing Britain, while the economy, housing and education is third on 22%.

Public concern about the justice system is hardly registering with voters. However, increasing concern about knife crime, with a spate of attacks in London recently, is turning attention to crime, law and order and anti-social behaviour. These issues are seen by 15% of those polled as ‘the most’ or among ‘other important issues’ facing Britain today – but only 3% saw this cluster as ‘the most important’.

Nevertheless crime appears to be rising up Labour’s agenda and it is significant that more than 90 Labour MPs have signed Jeremy Corbyn’s Early Day Motion praying against the regulations introduced by the Ministry of Justice on 1 April to implement the new Advocates’ Graduated Fees Scheme (AGFS). The government’s response to the Lords’ Scrutiny Committee report on this issue at the time of writing is still awaited.

The need to remake the case for justice will have been well served by the distribution to every MP of the Secret Barrister’s Stories of the Law and How it’s broken. This damning account of the state of the criminal justice system and the human costs involved will open the eyes of parliamentarians and explain why it really matters for the government to act before it is too late.

Alongside making the case for justice reinvestment there is a need for campaigners to engage with networks and communities. People under 30, who rely much more on social rather than mass media, increasingly trust their peers more than they trust institutions today (which most of the mainstream press shows little interest in wishing to address). As a result more diffuse channels of communication will be needed to mobilise opinion among tens if not hundreds of thousands of people who rely on justice.

Explaining, in vivid and compelling terms, why justice matters to all of us, by underpinning the rule of law and our democratic way of life, is currently a tall order to engage popular attention with the media’s and political preoccupation with Brexit and whether this tectonic re-ordering will plunge Britain into a kind of ‘Mad Max dystopia’ as some fear.

The local elections on 3 May will provide the first England-wide test of electoral opinion since last June’s snap general election. There are no polls in Scotland, Wales or Northern Ireland but there are about 150 councils (metropolitan, unitary, borough and district councils) being contested, in most cases for the first time since 2014. The results will show just how far the divisions that became apparent in the EU Referendum in 2016, and were repeated 12 months later, have become more established.

Local elections always attract a lower turnout than general elections whether through voter apathy or because of the decline in local government powers but for those voting, how the party leaders are perceived is key.

Theresa May’s handling of Brexit (and ‘standing up’ to Russia) will be significant. Support for the Tories among the overwhelmingly pro-remain vote in London is expected to slump, with losses possibly occurring in their flagship boroughs of Wandsworth and Westminster, and Labour hoping to wrest control of Kensington and Chelsea from the Tories with their wafer-thin majority and the legacy of the Grenfell Tower tragedy.

Outside London Labour’s share of the vote is likely to be less while the Tories can expect to make some headway following the effective demise of UKIP. Although Corbyn has been dogged by criticism of his handling of allegations of anti-semitism and his stance towards to Russia, with the consolidation of the Labour leader’s grip on the party bureaucracy and supported by Momentum we can expect to see Labour doing well in its traditional northern strongholds such as Newcastle, Leeds, Manchester and Rotherham. The party claims to be on the cusp of power and ready for a general election whenever it comes.

In a recent poll of just over a 1,000 voters, Delta’s poll of the popularity of the party leaders in early April showed Corbyn scoring a net approval rating on -27, with May on -6 (Boris Johnson managed -26). Vince Cable gained a net approval rating of -29 showing just how difficult the Lib Dems are finding it to make an impact.

Against this febrile political background, the normal business of Parliament continues in between periods of recess including the following matters of interest to the Bar.

Peers have begun the report stage of the European Union (Withdrawal) Bill. It was considered in committee involving 115 hours of debate over 11 days. No amendments were made to the Bill and no divisions took place during the committee stage as Peers reserved their firepower for the report stage. All amendments formally moved during committee were subsequently withdrawn by the Member responsible. Among those areas which the government said it would consider issues raised by Peers were the status of retained EU law, post-exit judgments of the Court of Justice of the European Union (following representations made by the Bar Council to the government), powers to create criminal offences, scrutiny of sub-delegated legislation and implementing the Withdrawal Agreement. The Bill is scheduled to be considered for six days on report up to 8 May when we can expect amendments to be pressed to divisions unless the government gives any ground.

Also to note on the legislative front in the Lords is the Civil Liability Bill which, after its second reading on 24 May, begins its detailed scrutiny in committee.

Among the Lords select committees, the European Union Committee (and its six sub-committees) have been particularly active. The main committee has recently completed receiving evidence about the post-Brexit future UK-EU relationship. Three of the EU sub-committees, covering Home Affairs, Internal Market and Justice are expected to produce reports which will be of interest to the Bar.

The Lords’ Constitution Committee, which is currently conducting an inquiry into the legislative process, will also conduct a one-off evidence session with the Lord Chief Justice on 25 May. His assessment of the state of the criminal justice system in particular will be important.

In the Commons, the Data Protection Bill is being considered on report when it is hoped that the Bar Council’s concerns about its impact on legal professional privilege will finally register with MPs. In addition to a debate on court closures, just before the Easter recess started there were two Westminster Hall debates, the first on promoting legal services post-Brexit, the second on the government’s response to the Justice Committee’s report on the implications of Brexit for the justice system, on all of which the Bar Council briefed MPs.

A fuller report on these proceedings will be covered in the June issue of this column which will appear during the period when Parliament will rise for the Whitsun recess on 24 May.

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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.