Civil liberties policy: more liberal than conservative?

A few days on from the tumultuous events of last week and the UK is settling down to coalition government. Details of specific policies have yet to emerge, but the signs are hopeful as regards human rights and civil liberties.

It was plain that repeal of the Human Rights Act would be a deal-breaker for any Liberal Democrat-Conservative coalition and so we have seen no mention of the Conservative Party’s manifesto pledge to replace it. At point ten of the document summarising the deal between the parties, the new government commits itself to passing: 'A Freedom or Great Repeal Bill'. This policy has Liberal Democrat fingerprints all over it as the party was touting a draft Freedom Bill at its last conference. It seems that many of Labour's measures which are perceived as anti-civil liberties are to be trashed. Out will go ID cards, the National Identity register and biometric passports. Also included is the reform of the libel laws and the Freedom of Information Act, the restoration of rights to non-violent protest and greater protections for the DNA database.

Perhaps part of the reason for the Conservative swing towards a more liberal civil liberties agenda is to save cash. Both parties claim savings can be made by scrapping the ID cards scheme - described as a 'laminated poll tax' by the Liberal Democrats. The Liberal Democrats also claimed in their manifesto that £795 million could be saved by cancelling the prison-building programme and replacing prison sentences of less than six months with community sentences. Such measures play well with those close to penal policy who know prison is hopeless at rehabilitation. LAG believes an opportunity exists to take on the mistaken policy assumption that 'prison works' and go for real reform.

There is much sense in what is proposed by the new government and there are some opportunities for reform, but such measures will need to be passed quickly while goodwill for the new government exists and discipline on the Conservative backbenches remains firm.

Photograph: Legal Action Group

Clarke takes over at the MoJ

It has just been announced that Kenneth Clarke will become the Lord Chancellor and Secretary of State for Justice in David Cameron's cabinet.

He was called to the Bar in 1963 and is likely to be the most experienced member of Cameron's first cabinet, having held ministerial positions in every government over the 18 years of the Thatcher and Major eras. As a former Chancellor of the Exchequer and Shadow Secretary of State for Business, he will probably be disappointed not to have been offered one of the major economic portfolios. But the alliance with the Liberal Democrats has meant that many Conservatives with shadow portfolios have been bumped out of positions they might have hoped for in cabinet.

The new Lord Chancellor is famously fond of jazz, cigars and the odd pint of beer. His pro-European views led to him losing the Tory leadership when he contested it in 1997, 2001 and 2005. It will be interesting to see whether his appointment indicates a shift in Tory policy on criminal justice to the more progressive stance of their Liberal Democrat coalition partners, who stated in their election manifesto that they wanted to reduce prison numbers. Both Labour and the Conservatives pledged to expand prison places.

Ministers below cabinet level and the law officers should be announced over the next 24 hours and the LAG news blog will report on these as soon as we have details.

Photograph: Legal Action Group

Legal aid and the election

In the run-up to the general election, LAG has been talking to politicians about their plans for legal aid. Labour indicated that legal aid would be subject to further cuts if it was re-elected. In contrast, the Conservatives would not be drawn on whether they would make cuts, but said that they would initiate a review of legal aid if they were to form the next government. They also want to put in place alternative methods for funding legal aid. The Liberal Democrats probably have the best party policy on legal aid and certainly the most progressive policies on civil liberties in general. When asked, though, they would also give no guarantees about their budget plans for legal aid. On a positive note, both Labour and the Conservatives told LAG that they will preserve the expenditure on social welfare law if elected.

One of the ideas which the Tories favour to raise more cash for legal aid is a levy on the interest on money held by solicitors on behalf of clients. They give the example of France, where 300 million Euros are raised for legal aid services in this way. They have also floated the idea of a levy of £200 on every criminal legal aid client to help fund the system. Even if these ideas are implemented (and they would face strong opposition), given the state of the public finances LAG strongly suspects that any new money will not be in addition to the current legal aid budget.

In the current spending review period which ends in March 2011, the Ministry of Justice (MoJ) has had to find £1 billion in cuts. In this year’s budget, the government committed it to finding a further £360 million. LAG is struggling to see how these cuts, which amount to over a tenth of the MoJ’s budget, can be made without serious damage to the administration of justice. All the political parties are caught in a budgeting cleft stick of preserving expenditure on the NHS and education, which means the inevitable spending cuts will fall disproportionately on other departments including the MoJ.

Photograph: Legal Action Group

Legal aid debate

'Legal Aid after the Election' was the title of the LawWorks debate last night. An invited audience heard from the legal aid minister Lord Bach, the two Shadow Justice Secretaries, Conservative Dominic Grieve QC MP and Liberal Democrat David Howarth MP, and Des Hudson, chief executive of the Law Society. Perhaps ominously, what was striking was the remarkable degree of agreement between the politicians on legal aid policy.

Paul Newdick, the chairperson of legal charity LawWorks, which organises pro bono work for city lawyers, said in opening the proceedings that: 'Pro bono is an adjunct to, not a substitute for, legal aid and it is important that the government is constantly reminded one is no substitute for the other.' This was clearly aimed at both reassuring the legal aid lawyers in the room and as a warning shot to the politicians.

Cutting to the chase Lord Bach said: 'Politicians should tell the truth and the truth is legal aid is liable for more cuts under any government.' In response to this comment, Dominic Grieve observed that the budget had planned a 17 per cent cut in public expenditure which would include legal aid. In his view the current legal aid system is 'not salvageable' and what is needed for the future is 'thinking creatively perhaps on a cross-party basis'. David Howarth also said: 'There would be no new money for legal aid.' He also emphasised the need to look at the cost drivers in legal aid such as experts’ fees and fees for high cost criminal cases.

Both Lord Bach and Dominic Grieve agreed that the legal aid fund needed to be compensated by other arms of government for policy changes which lead to increased demand for legal aid, but both acknowledged the difficulties in doing this. There was also consensus on the need to take direct control of the Legal Services Commission (LSC). Dominic Grieve said that if the government had not moved to do so, the Conservatives would have, if elected. He could not resist a swipe at the government, observing: 'The LSC was a creation of the present government. One of the motives behind its creation was to distance the government from difficult policy decisions.'

One point of significant difference between the two main political parties seemed to be over the question of competitive tendering for criminal legal aid. Lord Bach said that as a former criminal legal aid barrister he had taken some convincing that this was the way forward. Referring to the plans announced last week (see post from 22 March), he said that he was 'firmly of the view this was the only way criminal legal aid can work'. In contrast Dominic Grieve said that: 'Best value tendering is not the best approach' and, if elected, the Conservatives would carry out a legal aid review before making any changes to policy.

Des Hudson argued that legal aid was a 'frontline service as important as health or education' and that money should be found to fund it. He acknowledged that something had to be done as the present criminal legal aid system was not sustainable, but said: 'I have severe reservations about whether the government’s plans [for criminal legal aid] can be implemented.' He also suggested cash could be found for legal aid from other parts of government, for example from the '£2.5 billion a year that goes on management consultants'. In contrast to the politicians he emphasised that: 'There can be no rule of law without access to justice.'

From LAG’s point of view the debate last night indicated that, whoever forms the next government, the current policy of trying to cut back on expenditure will continue. Some of the Conservatives' ideas about bringing new money into the system, such as a levy on client account interest, are eye-catching but they will only bring in relatively small sums and there are no guarantees that the cash will not be swallowed up by the Treasury. The problem is, as argued last night: 'Legal aid is not a vote winner', but Des Hudson was right in arguing that it is essential to maintain the rule of law. Whichever party wins the general election will need to be constantly reminded of this fact in the difficult months ahead.

A bill of rights election

Last week saw the opening shots of what is likely to be a four-month general election campaign, assuming Gordon Brown goes for the predicted 6 May polling day. The Human Rights Act (HRA) 1998 will feature in this campaign as Conservative leader David Cameron has pledged to repeal it and replace it with a 'British Bill of Rights'. It is unclear, though, what he means by this.

The promised bill of rights could be a codification of existing rights which can be portrayed as being British in character, such as habeas corpus and trial by jury, as well as the rights under the European Convention on Human Rights (the convention) enshrined in the HRA. This would be welcome as better defining the rights that British or UK citizens enjoy (a 'United Kingdom Bill of Rights' would seem a much better title as it would fit the devolved constitutional settlement in Scotland and and Northern Ireland). It could also be seen as an opportunity to engage the public in a discussion on what they want from a bill of rights, hopefully allaying some of the misconceptions that seem to abound about the HRA.

However, in the worst-case scenario, the Conservatives, if elected, would repeal the HRA and turn the legislative clock back to 1998. Their bill of rights could be no more than legislative smoke and mirrors to provide the cover to rescind the rights enshrined in the HRA, forcing people to enforce their convention rights in the European Court of Human Rights instead of the UK courts.

In LAG's view, the rights covered in the HRA are fundamental to a civilised society and their impact should not be diluted by any replacement legislation. The Conservatives do say that they support the convention. It is important in the coming weeks that they make clear their intentions regarding the bill of rights and the HRA as the current position is ambiguous.

LAG would also urge all the political parties to come to a consensus on what should be included in a bill of rights. Labour, unfortunately, has failed so far to build a consensus around the HRA. There were some useful discussions between the parties initiated by the publication last year of a government green paper suggesting a 'Bill of Rights and Responsibilities' which should be built on. Such an important constitutional bill needs to be above party politics or we risk each new government tinkering with what should be seen as our nation's constitutional bedrock.

No time to pull your punches!

Citizens Advice published a report in July, No time to retire – legal aid at 60, which warns that more people are being denied access to civil legal aid despite a huge increase in demand fuelled by the recession. It argues that fewer people are getting civil legal aid due to barriers such as patchy geographical provision, long waiting times and complex qualifying criteria.

Two surveys carried out by Citizens Advice Bureaux (CAB) in 2008 and 2009 discovered that CAB across England and Wales regularly find it almost impossible to locate a Community Legal Service (CLS) lawyer for court and tribunal proceedings, or a legal aid lawyer to deal with specialist issues. Seventy-six per cent of CAB had problems finding a CLS lawyer to deal with urgent employment cases, while 75 per cent could not find a CLS lawyer to deal with urgent housing matters, and 68 per cent said they had problems finding a CLS lawyer to take on urgent family cases.

These are damning statistics and they confirm what LAG, legal aid providers and other commentators are saying about the availability of legal aid, but the report has received little coverage in the media. This is a great shame because it also challenges the commonly-held view in government circles that voters are not concerned about legal aid. Independent research commissioned by Citizens Advice for the report showed great public support for legal aid. Two thousand people were questioned in March this year - 92 per cent thought it was either very important (68 per cent) or quite important (24 per cent) for people on low incomes to get legal aid for problems such as debt, benefits, family law, housing and employment. LAG would argue that a similar opinion poll needs to be conducted on criminal legal aid to gauge public support for legal aid and its importance in ensuring a fair trial for people accused of a crime.

Hopefully, the support for civil legal aid reflected in the survey results and the concerns expressed in the report will be given greater prominence in the run-up to the general election. A higher profile for legal aid in the election campaign is needed to head-off any belief that legal aid is a 'soft option' for cuts and, most importantly, to convince the public that their money is being wisely spent on providing access to justice.