Toby Craig and Charles Hale review the legislative issues of 2011 and how these may unfold in the year ahead
Good tidings we bring
Yes, ‘that’ time of year is approaching once again, the festive season soon upon us. Many would be forgiven for thinking about what they might hope to find in their stockings. It would be all too easy to cast the Lord Chancellor as the Grinch, rather than St. Nick, as legal aid is snatched away from the poor, the needy and the vulnerable. ‘Tis the season as they say.
We should also warn you to take special care with Counsel. It may be the new trend for our friends in Parliament to discard important papers in park bins. We are confident that Counsel readers are keen recyclers, though back copies surely adorn their bookshelves and are displayed with pride.
As Parliament begins to wind down a busy legislative programme continues. The Legal Aid Bill completed its course through the Commons, to a greater or lesser extent intact and the Protection of Freedoms Bill, of which every lawyer should be aware, began its Lords stages.
The Culture Committee could not be accused of being in a festive mood as it recalled James Murdoch for a second round of evidence. No shaving foam pies this time around, but Tom Watson was on hand as ever to deliver a verbal assault. Sadly for Murdoch Jnr, Wendy Deng was not on hand to issue a right-hander this time.
The Bill
The Legal Aid Bill continues to pre-occupy our minds. It was disappointing, though not surprising, to see that the only substantive changes were unforeseen and came on the Sentencing side (a greater penalty for death by dangerous driving and the removal of IPPs). There may not have been many victories at this stage, but a number of markers have been put down and there are MPs on all sides of the House who are publicly or privately supportive. There remains hope that the greatest scrutiny will take place in the Lords, where, one prays, their Lordships will bring a higher level of understanding to some of the more technical aspects of the Bill (particularly in Part Two, which grapples with the Jackson reforms).
The Bar Council’s lobbying in the Lords is well underway. Peers were briefed on all aspects of the Bill at a well-attended cross-party briefing and written materials have been distributed widely. The family aspects of the Bill have maintained a dominant role in highlighting some of the worst elements of the proposed legislation.
As the Family Justice Review published its final report, followed by the Civil Justice Council’s impressive report on litigants in person, the abundantly clear theme is that DIY justice is slower, more expensive and more likely to lead to bad results for parties representing themselves. It is barely worthy of being called justice. The very well received Manifesto for Family Justice, which has drawn together such a broad range of high profile interest groups, continues to act as an effective tool in promoting particular amendments to the Bill. For now, it is in their Lordships’ hands.
The Other Bill
The other important piece of legislation, which has floated slightly under the radar, is the Protection of Freedoms Bill. This provides an opportunity to amend the Regulation of Investigatory Powers Act 2000, which permits the police and other public authorities to target legally privileged material. Ah, you’re awake now; yes we did say legally privileged material.
The erosion of this fundamental principle which has long underpinned the giving and receiving of legal advice needs to be looked at again. It has been mooted that the current situation is a breach of our obligations under the ECHR and forthcoming EU legislation. The very real potential for abuse was made plain in the recent Boyling case; the undercover officer accused of infiltrating the direct action group, Reclaim the Streets, to spy on them. When a number were arrested he did not break cover. Instead he is alleged to have carried on in the false identity which meant giving false and misleading evidence in court and obtaining access to what the defence case was, including meetings with defence solicitors. Clearly this included access to legally privileged information. The facts in that case are not yet clear, but the extremely worrying consequences of this legislation must be.
It is interesting to replay the Coalition Agreement’s stance on civil liberties:
“We will be strong in defence of freedom. The Government believes that the British state has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties.”
Well that seems fairly clear. It is particularly surprising that the Liberal Democrats are willing to sign up to this. The House of Lords will undoubtedly have concerns about the unamended Bill, and we must hope that they take the opportunity to make the necessary changes in the spirit of the Coalition Agreement.
Revolving doors
As one door closes, another door opens. We bid a fond farewell to Peter Lodder QC, who has worked tirelessly on behalf of the Bar. But we offer a warm welcome Michael Todd QC, who brings with him an exciting and an ambitious agenda; more on that in January.
Looking back, it has been a frenetic year; the Coalition Government seems increasingly stable, as it retains a steadfast commitment to tackling the deficit. There have been the usual political crises and departures such as that of Liam Fox which captured the headlines, but the Cabinet remains largely unchanged. And the Opposition? Well they have been conspicuously unable to open up any kind of lead in the polls, and at this stage in the Parliamentary process, the Government is on fairly firm ground. But a week can be a long time in politics and with the Eurozone situation increasingly unclear the financial policies on which the Coalition is built may well be at risk in 2012.
The Bar Council’s strong parliamentary links are further fortified by the welcome news that Lord Carlile of Berriew QC, the former independent reviewer of terrorism legislation, has been elected to the Council. We welcome him as we do all those highly capable new members elected along with him.
So the end of another year. Peace and goodwill to all WW readers and here’s to a prosperous, Olympic 2012.