Westminster Watch

The criminal Bar’s future occupies hearts and minds; is it too much to hope the MoJ wakes up and smells the coffee from its spanking-new reception, asks Mark Hatcher


Benugo the café chain says it’s proud to serve coffee and food in ‘some of the most recognisable workplaces in the UK’ including Amazon, Deloitte, Deutsche Bank, Microsoft, PwC, Virgin Atlantic and, you’ve probably guessed it, the Ministry of Justice. Visitors to the Ministry’s Petty France headquarters in London will have noticed Benugo’s pop up coffee tuk tuk providing in-house ‘catering with a conscience’ in the MoJ’s reception area which has been given a make-over.

This fortress, designed in the confident brutalist style of the 1960s, was formerly occupied by the Home Office. Jack Straw (who worked there as a special adviser to Labour Home Secretary, Roy Jenkins) described it as ‘the Lubyanka’ after the former KGB headquarters and prison in Moscow. The MoJ’s interior designers seem to have gone back to this era with a new airport style concrete reception in different shades of grey. Receptionists with cheerful smiles and smart navy blue uniforms are doing all they can to overcome the lengthy queues and delays previously experienced by visitors.

It is a far cry from the experience of penetrating reception areas in many Crown courts. Barristers will be familiar with the time-consuming and frustrating performance of passing through security controls, sipping their coffee to prove it does not contain poison and trying to locate the court’s facilities in the hope that at least some of the infrastructure will be working.

The crisis in the criminal justice system undoubtedly focused the minds of those who turned up to the briefing event recently organised by the Criminal Bar Association and Young Legal Aid Lawyers and supported by a broad coalition including the Bar Council. Chair of the All Party Parliamentary Group on Legal Aid, Karen Buck was among 20 or so mainly Labour MPs who attended the meeting to brief parliamentarians on Labour’s motion to annul the AGFS regulations which had been laid on 23 February. The new scheme came into effect on 1 April under the negative resolution procedure (whereby an instrument becomes law without debate unless it is challenged).

For a time it had looked as though the motion on the AGFS issue, which has fired up the criminal Bar to an unprecedented degree, would not be debated. There is a procedural requirement that a motion to annul has to be agreed within 40 days of the regulation having been laid. The ‘praying period’ ended on 20 April but the government showed no signs of making time available for a debate which, by convention, would have been expected. Speaker Bercow described it as a ‘regrettable state of affairs’. The government reluctantly agreed to find time but only after the 40-day period had expired. So even if Labour’s motion had been agreed (which a three-line whip on the government’s side ensured it would not), the motion would have had no effect.

It fell to Lucy Frazer MP, the legal aid Minister, to defend the government’s position. It was her first major test at the despatch box since her appointment in January and perhaps unsurprisingly the Lord Chancellor and Secretary of State for Justice, David Gauke chose to sit beside her as she faced his opposite number, Richard Burgon who led for Labour.

The debate showed a good deal of cross-party support for the concerns of the criminal Bar including from Alex Chalk, a Conservative Member of the Justice Committee and criminal barrister, who made a powerful contribution by reminding the House about the context of public expenditure on justice and legal aid. Treasury Red Book figures showed that total public expenditure for 2018-19 was expected to be £809bn. The total Ministry of Justice budget was less than £7bn. To put that into perspective, more is spent on welfare and pensions in two weeks than is spent on justice, and the amount spent on international aid – about £14bn – is approximately double the entire justice budget. ‘To put it another way,’ Chalk said, ‘we spend more on the aid effort in Syria alone than we do on the entire legal aid budget in our country.’

In words that will surely have cheered criminal practitioners, Chalk added that if the government allowed the criminal Bar to fall over, the overhead cost to the state of employing barristers in an enhanced Public Defender Service would be ‘extortionate and unaffordable’. The culture would also change as barristers would be far less likely to work long into the night and at weekends. The sums of money required to secure the criminal Bar he thought were modest. Barristers were not seeking wealth, but viability.

While the future of the criminal Bar has been occupying hearts as well as minds at Westminster and in Whitehall, and with only 10 months to go before the UK leaves the EU, Brexit continues to loom over everything, including finding any legislative time that could be used to try to ameliorate the problems caused by inadequate funding of criminal legal aid.

The European Union (Withdrawal) Bill completed its Lords’ stages on 16 May. This is now a very different Bill to the one David Davis introduced last September. When the Bill went through the Commons last Autumn the one big defeat for the Prime Minister was Dominic Grieve’s amendment that, in effect, required Parliament to vote to approve the final withdrawal agreement. The Bill has now been transformed by Peers.

The Lords’ amendments (including one moved by the 9th Duke of Wellington, removing the March 2019 deadline for departure from the EU) are significant. Of the 316 amendments tabled during the report stage, 192 were made to the Bill and a further nine amendments were made on third reading. The government was defeated in 15 votes in the Lords. These included an amendment to ensure that the EU Charter of Fundamental Rights would be retained in domestic law after exit day. In addition a large number of government amendments were made to the Bill at report stage without division, in response to scrutiny at committee stage and other developments. These included amendments to clarify how the UK courts should treat the judgments of the Court of Justice of the EU on exit day and to remove delegated powers which would have allowed Ministers to create new public bodies by statutory instrument.

The Withdrawal Bill now returns to the Commons for consideration of Lords’ amendments, a process known as ‘ping-pong’ which can continue through several stages until all amendments have been agreed or deadlock is reached.

Theresa May’s strategy is to try to hold the Tory party together by withdrawing from the EU while making practical compromises to maintain as ‘frictionless’ a relationship as possible with the EU. But this could be scuppered if she is defeated on the single market, or the customs union or Irish border. Meanwhile the Cabinet’s Brexit war-group seems to be at war with itself and there has been talk about avoiding further votes until the autumn to avoid embarrassing defeats in the Commons ahead of the June EU Summit when the UK’s future relationship will be discussed. But No 10 are saying that the Bill will return to the Commons before the start of the summer recess on 24 July.

There are some big questions at stake and Tory soft Brexiteers may well become bolder with the result that we could see them taking advantage of the hung Parliament and forming coalitions, similar to the one that passed the Grieve amendment. Moderate Tories will have to fight harder to avoid their party drifting further rightwards while the Labour leadership will need to become, and be seen to be, less ambivalent about its stance toward the Withdrawal Bill and the related Brexit measures.

Perhaps, after Ministers return to Westminster from the Spring recess on 4 June, the sheer scale and complexity of the Brexit challenges will put the more manageable domestic agenda into focus. Is it too much to hope that the MoJ will wake up and smell the coffee from its bright new reception and acknowledge that something must be done about the state of the criminal justice system before it is too late?

Mark Hatcher, Special Adviser to the Chair of the Bar

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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.