Westminster Watch

It’s stop-start at Westminster. The flame of legal aid continues to flicker but public attention is focusing Ministry minds. Mark Hatcher examines state of play


When MPs returned to Westminster from their summer recess on 4 September it was to go through a spasm of parliamentary activity before rising for the party conference recess. Because the main UK political parties are wedded to holding their annual conferences so that they run through Mondays to Wednesdays, the House of Commons has to be suspended for nearly four weeks. Coming as it does barely a fortnight after the House has returned from the summer recess, the conference recess has a more profound impact. It means that, on average, for almost three months – virtually a quarter of the year, from mid-July to mid-October – the House is not sitting, bar two weeks. The executive thus enjoys a generous measure of freedom from scrutiny by the legislature.

It can hardly be argued that ‘nothing happens’ over the summer, as Ministers and officials toiling away to meet the Brexit timetable would doubtless testify. It was the need to get so much Brexit legislation into law which led the government, after the 2017 general election, to schedule a rare two-year parliamentary session, only the second time this has happened since 1945. Bercow’s remedy, that the conferences should be held over long weekends, has not so far found favour with the main parties.

The flame of legal aid continues to flicker at Westminster. Labour backbencher, Karen Buck who chairs the All Party Parliamentary Group on Legal Aid, performed a useful service to MPs returning from their summer break in a Westminster Hall debate on legal aid and the Ministry of Justice’s (MOJ) Post-Implementation Review of LASPO. These short debates, which actually take place in the Grand Committee Room off Westminster Hall, can provide a good opportunity for members to initiate a general debate to draw attention to a national or local issue. There is no vote but a Minister does respond.

With a depressing welter of statistics which have become familiar, Buck described the current crisis in legal aid by reminding members that expenditure had fallen by £600m since 2013. The number of legal aid and controlled legal representation claims had halved, falling from 188,643 to 92,124. Mediation starts had more than halved. The number of legal aid providers had plunged by 800 in criminal law and 1,200 in civil law. Exceptional case funding was expected to support between 5,000-7,000 cases but in 2013 there were only 70 successful grants. The number of benefits disputes cases in which legal aid was granted fell from 29,801 in 2011-12, to just 308 in 2016-17, a fall of 99%. When individuals are able to challenge benefits decisions the majority were overturned. Since 2013, 63% of appeals against Personal Independence Payments had been decided in the claimant’s favour. In her brief response, the Minister, Lucy Frazer confirmed that the government stood by its 2015 commitment to review LASPO and by implication David Gauke’s acknowledgement in March 2018 that conclusion of the review would slip to the end of the year.

The findings of MOJ’s review well could provide the ministry with some of the evidence they will need to persuade the Treasury about the need for greater funding of justice. There are signs that the mounting chaos in the justice system is finally attracting public attention which Ministers are coming under increasing pressure to sort out.

The political calculation appears to have been that people will not notice this crisis as spending on prisons, support for vulnerable families and legal aid is whittled away or that if they do notice they will not care that much. As the Guardian observed in a powerful leader after the LASPO debate, often those whose tribulations go unnoticed are the same people: so the children who grow up in foster care because their parents couldn’t manage face a statistically far higher chance of ending up in the criminal justice system, or suffering poor health leading to a reliance on benefits. To some of the most vulnerable people it will have seemed that the state has abandoned its responsibilities on benefits and justice. Although some ameliorative measures have been taken (with adjustments having been made or under consultation to legal aid for example), the time is ripe for considering a change of approach.

The 2019 Spending Review, details of which can be expected to be announced in the Chancellor’s budget statement, will be the first to be conducted by a minority government since 1998 and we can expect decisions to be taken in the immediate aftermath of Brexit. That is at precisely the time when a long-term, evidence-based strategic focus is needed in Whitehall and when it will be most difficult to bring to bear.

The case for justice will have to join the queue of other advocates for increased spending on public services which have come under great strain after two previous rounds of spending reductions even if there have been improvements in efficiency. The case-making will not only need to address the widening gap between expectations of public services and the money available to provide them but also the constraints which the current government has set itself: a commitment to reduce the deficit further and keep taxes low, the pledge to increase NHS spending by an additional £20bn by 2023/24 and a commitment to ring-fence spending on schools and overseas aid. If there is no appetite to increase tax, how much government can spend will depend on how much it is prepared to borrow. So the 2019 Spending Review will be another very lean one for public services.

Have we reached the stage where justice has become one of the ‘burning injustices’ the Prime Minister said in her speech on the steps of Downing Street immediately after the 2017 election? The challenge here is to ensure that the future of justice is part of the government’s vision of life post-Brexit. This is not just for the MOJ to articulate and take to the Treasury in a bilateral discussion. It is in the main a cross-departmental challenge which should engage political heads and the relevant policy and finance teams of the Departments of Health, Home Office, Work and Pensions, Communities and Local Government to name a few, as well as the Cabinet Office and No 10. The crisis in justice like mental health or social care does not, and should not, respect departmental silos. It is interesting therefore to note the establishment recently in the Treasury of a costings unit to identify and assess costs which fall outside their departmental origins.

The profession needs to identify and prioritise justice where there is a space for both political and substantive discussion across government, but particularly with the Treasury. David Gauke’s substantial ministerial experience in that department should make him very well placed to identify the strategic importance of justice to fulfilling the Treasury’s and the PM’s objectives post-Brexit. He will need to ensure that the Ministry’s funding plans are credible and not vulnerable to ‘optimism bias’ or ‘cost shunting’ and that risks (including political risks) have been identified and can be managed, and that sufficient focus can be given to the long term.

In advising their ministerial team, and non-executive board members, MoJ officials (and their counterparts in the Treasury and other relevant departments), both on the policy making side focusing on strategy and negotiation, and in the finance function, stand to benefit from engagement with the Bar and other parts of the legal profession. The MOJ’s in-house experience, which remains largely generalist, needs to be informed and bolstered by the professionalism and sectoral expertise to which it aspires, so that spending judgments (ultimately made by Ministers) are informed by an understanding and experience of the realities of service delivery at the sharp end. At the most basic this will involve conversations about the data and the reporting that MOJ will need to satisfy the Treasury in the allocation of funding as well as subsequent assessment of policy and achievement of outcomes.

As we approach the next Spending Review the time has surely come when a longer term, more joined-up approach to funding justice and other key areas of public concern is essential to avoid the fabric falling apart. Food for thought as the political elite returns to Westminster from their conferences on 9 October? ●

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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.