Making up party policy on civil justice

We need a new roof, and as work started one of the things moved out of the loft this week is a box file full of papers from my time as political researcher covering legal affairs for the Liberal Democrats in the House of Commons (1997-98). It offers some insights into how opposition ‘law makers’ try to respond to and shape justice policy, including the constraints they face. 

I’m not sure the Liberal Democrats merited a legal affairs researcher on 2 May 1997. As I reflected in the Gazette this February, aside from the closely fought area of crime, which sat with home affairs, law was a policy backwater. Still, I needed a job, and wasn’t yet ready to leave working in politics.

For a few months I created tasks for myself, looking at unfashionable areas like prison reform, remand, prison suicides, and trying to think of questions MPs could ask the attorney general. The line up of eminent Liberal Democrat lawyers in the Lords, which included the barristers lords Lester and Thomas, seemed to operate independently of any party process. ‘They’re good, but they’re too “great” for that,’ I was told.

Thursday 16 October 1997, I picked up the morning papers and all that changed. Ahead of a speech to be delivered the next day by the lord chancellor, Lord Irvine, the media had been briefed on ‘a huge cost-cutting exercise which will result in the most severe reduction in access to civil justice since legal aid began in 1949’.

‘Plans for privatisation of almost half the civil legal-aid scheme far exceed anything contemplated by the Tories,’ the Independent reported. ‘Only a relatively small number of cases involving social welfare, housing, immigration and possibly medical-negligence claims are to be spared the axe’.

The Labour government was already acquiring a formative habit for making announcements away from parliament. We had to request Irvine’s actual speech direct from his office, which deigned to fax it six days later. The fax cover sheet is now barely legible. ‘I enclose a copy of my speech as delivered’, the lord chancellor wrote, ‘the real thing is better than the trailers.’ Signed ‘Irvine of Lairg’ in a majestic hand.

Along with requesting the speech that Thursday, I went early to the party’s whips office off central lobby, hoping the senior researcher would hand me a folder containing Lib Dem policies on civil justice and legal aid.

But the cupboard was bare. Incredibly to me, although the party had the appetite to endlessly debate and pass motions on the most unlikely areas of public policy, there was nothing on civil justice. No party conference motions, no policy documents, no guiding thoughts from the federal policy committee.

No mandate could be conjured up from conference – we were just back from Eastbourne.

But there was a Liberal Democrat Lawyers Association, and the chair, a partner at City firm Rowe & Maw, had already got association members to write a submission to Sir Peter Middleton’s ‘Review of Civil Justice and Legal Aid’ – in the association’s name, but with the central party’s branding added by me to hint at positional alignment between association and the party’s views.

Now the chair helped bring together an ad hoc group to do the heavy lifting of creating some basic policy positions at speed and responding to the government reviews and consultation papers that should follow.

Why bother? Well not least, opposition parties are always politically vulnerable to the question, ‘Well, what would you do?’

There are other entities in the background. Where the government of the day has all the resources of Whitehall at its disposal, opposition parties lean on the expertise of charities and campaigning groups, industry bodies and sympathetic experts. From memory at Budget time, a partner from a major accountancy firm was installed in the whips office to ready spokespeople for an immediate response to the chancellor.

Of course, everyone you lean on has their own agenda. One job of opposition political staff is to guard against ‘capture’ by these helpful people, while finding common cause and using their expertise. Here there was also a need to synthesise contributing views at speed.

Another ‘entity’ was the party’s own Treasury team in parliament. Like the actual Treasury, they are a check on spending commitments spokespersons would like to make. I hadn’t seen eye to eye with their senior researcher, a man on the right of the party, since he asked for ‘a simple but eye-catching way to make savings’ in our area, and I’d deadpanned, ‘Empty the prisons!’

By mid-November, there were the bare bones of a policy position that would do for now. The government’s proposals on legal aid were ‘ill-considered and rushed’ and would mean ‘the vulnerable will be hurt’. The insurance industry, central to the operation of conditional fee agreements, had been inadequately consulted. The government should introduce the Woolf Reforms first. The proposed ‘merits test’ for legal aid cases was set too high. And the lord chancellor needed to look properly at the Law Society and Bar Council’s proposals for raising more money for legal aid – notably this included a ‘contingency legal aid fund’.

(From memory, the Law Society and Bar Council had also been caught on the hop by Irvine’s October speech. It went far beyond the Middleton review, which reported in September '97.)

But there are also limits on how fast an activist lord chancellor can move. After the October media pyrotechnics, and a round of speeches and interviews by Irvine and minister Geoff Hoon, came a proper consultation paper – ‘Access to Justice with Conditional Fees’.

Broadly speaking, the Lib Dem policy position, in the absence of a conference, endorsed by the party’s federal policy committee, was as follows. ‘A Contingency Legal Aid Fund (CLAF) heads the list of proposals which we believe merit further attention.’ The costs secured from losing defendants in CLAF-backed cases would go towards funding future cases. This was the legal aid commitment we could make without clashing with Treasury team colleagues.

We knew by then that there was a reprieve for legal aid for medical negligence cases, which we had been among those calling for – the focus of much lobbying and numerous written questions. Legal aid must continue for judicial review cases, as these were unsuitable for CFAs. CFAs should be among a number of funding options available, including legal aid.

It had to be recognised that CFAs left gaps in provision, and were especially unsuitable for vulnerable clients. In a phrase that now sounds unfortunately dated, we stated: ‘The mentally ill should continue to be eligible for legal aid.’ (Right sentiment, wrong words.)

There should be a ‘public interest fund’ to support cases that could have a wide benefit if determined a certain way. There should be criteria set by government for the insurance products insurers might provide to support litigation. And legal aid should, as Middleton proposed, be available for tribunal cases.

Rereading all of this, I also detect a flash of anger at the paucity of evidence that sat behind a government policy that was being formed and implemented at speed. The KPMG report produced for the lord chancellor, a study that supported an assessment of how the legal market might respond, used no real life case studies and, we noted: ‘The “model” of firm used was one which had no borrowings, no overheads, and no costs.’

My box file goes back in the loft next week. At a distance of 24-25 years, can I say there was a point to all this?

Well, some. This group, and efforts in parliament, were part of a coalition of interests that successfully argued for a number of areas of legal aid to remain in scope, at least for a time. That is more easily done when your position is more than one of outrage or scepticism.

And the task of trying to keep justice policy evidence based is never ending. Justice policy is not informed by the levels of data available and used in other policy areas – and that policy making tendency calls for eternal vigilance. (As an aside, I’m therefore personally annoyed what the Lib Dems seem to have done no further policy work on civil justice since.)

Of course, in 2003 the UK joined the US invasion of Iraq, and given his controversial advice, no one in parliament had to wonder what to ask at attorney general’s questions ever again. And legal affairs, for better or worse, can no longer be described as a policy backwater.