Westminster Watch

‘Houdini May’ may yet escape from her Brexit box, but Mark Hatcher hopes the PM will use the recess to reflect on the place of justice in the government’s agenda


The Chequers Estate Act 1917 gave effect to a deed of settlement relating to the Chequers Estate between Sir Arthur (later Lord) and Lady Lee and the Public Trustee whereby the house was transferred to the nation to be maintained in perpetuity as the official country residence of the British Prime Minister. It was to be a place of rest and recreation for the ‘future wielders of power’ which, the schedule to the Act explained, might be ‘men (sic) of wealth and famous descent’ but in the post First World War era which brought in a new breed of politician were increasingly likely to be drawn from ‘the world of trade and business’ or ‘from the ranks of manual toilers’ and thus unlikely to be possessed of sufficient wealth to afford their own country retreat.

Chequers provided precious little rest and relaxation for Theresa May or her divided cabinet at the Brexit away day in early July which had been convened to agree the government’s position on the country’s future relationship with the EU after more than two years had elapsed since the EU referendum, to be spelt out a few days later in more detail in the much-delayed White Paper.

From the Chequers statement which was issued after a morning of briefings and four hours of discussion in the afternoon on 6 July 2018, it looked like ‘Houdini May’ had managed to escape from her Brexit box once again. But within hours the deal which appeared to have united the cabinet was unravelling as the demands of collective responsibility which the Prime Minister re-imposed began to kick in.

First David Davis then Boris Johnson abandoned ship, neither unexpectedly. Davis said the agreement was ‘certainly not returning control of our laws in any real sense’. Boris thought the government’s approach to EU withdrawal was ‘suffocated by needless self-doubt’ and would reduce the UK to the status of colony.

The resulting mini re-shuffle prompted by these and other more junior ministerial resignations (including Foreign Office Parliamentary Private Secretary (PPS) and barrister Robert Courts, who took over David Cameron’s seat) brought former Justice then briefly Housing Minister, Dominic Raab (a 44-year-old karate black belt and prominent Leave campaigner) into the cabinet to replace Davis.

Jeremy Wright QC was promoted to Culture Secretary from Attorney General, a post now filled by criminal barrister, Geoffrey Cox QC. Robert Buckland QC, appointed a law officer on the same day as Wright, remains as Solicitor General after four years in the post. In addition, Edward Argar, a little-known backbencher and former PPS to Amber Rudd when she was Home Secretary, joins the ministerial team at the Ministry of Justice to take over the responsibilities for criminal justice of Phillip Lee, a Remainer who resigned over Brexit.

It fell to Dominic Raab to explain the Brexit White Paper to the Commons. Published months after it should have been, copies were being distributed to members from cardboard boxes brought into to the chamber much to their bewilderment as the new Secretary of State began his statement and the Speaker chose briefly to suspend the sitting to restore order. It was not an auspicious start to what Raab described as delivering on the instruction of the British people to ‘take back control over our laws, our borders and our money’. The paper was intended to outline the government’s policy to end free movement, avoid a hard border between Northern Ireland and Ireland and between Northern Ireland and Great Britain, restore the sovereignty of Parliament and the authority of the UK Supreme Court, forge new trade deals and maintain co-operation with the EU.

The government says it wants a deep and comprehensive deal on services but where is this to be found? The White Paper’s discussion of the future of the UK’s services sector (including the legal services sector), which is much bigger than goods, is remarkably thin. The proposals are said to provide the UK with regulatory flexibility in the sector but nothing is said to explain the benefits the UK sees from future regulatory flexibility and why they outweigh the benefits of staying within the single market.

Like the Chequers statement on which it was based, the White Paper recognises that the UK and the EU will not have current levels of access to each other’s markets. So there is no commitment to align; the UK would retain the ability to diverge. There is an acceptance therefore that the UK’s ability to provide services would face greater restrictions in the EU (and vice versa) as a result. There seems to be little acknowledgement of the ways in which services, including professional services, add value to goods. There is a suggestion that there would be scope for trade deals in services but there is little evidence to date of deep trade in services deals. The EU has the most liberalised transnational services regime and we are now on our way to leaving it.

How are these proposals likely to be viewed in Brussels, which greeted the White Paper in a politely non-committal way? The EU could argue that goods and services are increasingly integrated and the single market institutions and infrastructure cannot be split to apply just to goods. It could be argued that the UK could gain an unfair advantage if it did not have to align on services that are embedded in goods (which are often a profitable component of a goods export). All in all the UK’s proposals on services and on the mutual recognition of professional qualifications will require the EU to demonstrate a great deal of flexibility.

The final withdrawal agreement, intended to be reached in October, but quite possibly likely to slip to the end of the year, will need to be framed into legal text and be given effect in domestic law by a Withdrawal Agreement and Implementation Bill to join the other Brexit Bills piling up including on trade, immigration and fisheries.

A number of MPs say that Brexit has sucked the intellectual life blood and capacity out of government and our politicians. But the day to day business of holding the executive to account has continued upstairs in the committee room corridors. The Commons Justice Committee recently heard from the Chairman of the Law Commission, Sir David Bean, who retires this month (to be succeeded by Sir Nicholas Green). Sir David explained how precarious the official process of law reform has become. Since 2010 the Commission has suffered a 54% reduction in its budget and only four out of 14 projects in its current programme are currently funded.

The Chairman of the Justice Committee and former criminal barrister, Bob Neill, was successful in initiating a debate in the Commons chamber on the Ministry of Justice’s spending plans for 2018–19. Estimates Day debates can be rather dry occasions but for those who are increasingly concerned about funding the justice system, and how this might be addressed in the forthcoming Spending Review, this was a useful if somewhat thinly attended debate. The Ministry of Justice’s (MoJ’s) resource departmental expenditure limit for 2018–19 is £6.9bn, 11% lower than last year’s budget. That is 2% of total resource expenditure across government. To put MoJ expenditure into perspective, the Department for Work and Pensions spends the equivalent of the entire annual MoJ budget in about ten days. More than half of that budget goes on prisons.

Bob Neill articulated what many on all sides of the House instinctively feel but all too rarely say. Justice is something that underpins the way in which we live our lives and the way in which we treat each other in a civilised society. Perhaps, he suggested, it should be measured more by its impact than in purely monetary terms. It was significant that, having loyally supported the austerity measures introduced by the Coalition in 2010 and the deep cuts in legal aid brought about by LASPO, the Justice Committee chairman thought that we had now reached a situation where cuts to legal aid were ‘becoming counterproductive’, a view that was echoed by Labour’s Shadow Justice Secretary Richard Burgon, who called for legal aid to be properly funded and access to justice valued.

Perhaps more parliamentarians will reflect on these observations during the summer recess until both Houses are scheduled to return on 4 September. Who knows, if she remains at the helm of government, maybe Theresa May will be able to use the tranquillity of Chequers to reflect on the place of justice in the government’s agenda outside Brexit?

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.