It’s a strange time in legal politics. If we were more convinced that the government was going to be defeated within the month, you’d expect to read lots of retrospective pieces at the moment about Labour’s legacy.
Instead, we shall shortly be seeing attempts to compare the parties’ manifesto promises on legal reform. Labour will no doubt pledge itself to resurrect the changes that it tried to introduce far too late in the parliament that is about to be dissolved. The Tories will promise reviews. Both parties, I predict, will appear to be saying the same thing about reforming the Human Rights Act.
And that, I suppose, is what legal historians will remember as the defining reform of Labour 1997-2010 (if this year does, indeed, mark the end of an era). Even if the Human Rights Act 1998 is modified by an incoming government, it will not be repealed.
There would be little point in doing so; no government would withdraw from the European Convention on Human Rights, jeopardising the UK’s membership of the Council of Europe and even of the EU. And so long as people may take legal action against the British government in the Strasbourg court, our own courts will continue to apply the principles underpinning the convention. They are, as the judges would say, part of the common law now.
Although Standpoint readers may take a more sceptical view, I am closer to Dominic Grieve than David Cameron on this one. I don’t regard Labour’s “incorporation” of the convention into domestic law as a disaster. I saw it as a political imperative – although it was one that would never have happened if Lord Irvine of Lairg, who became Lord Chancellor in 1997 – had not hit the ground running. It is he, I believe, who devised the subtle “declaration of incompatibility” on which the entire Act rests, preserving parliamentary sovereignty while giving judges strong powers to “read down” legislation in a way that complies with human rights standards.
The Freedom of Information Act 2000 is another piece of legislation that would never have become law if Tony Blair had understood its consequences. Here, though, the dates tell the story: passed more than three years after Labour came to power, the Act was not brought into effect until 2005. Alarm bells were beginning to sound. The Freedom of Information Act was indirectly responsible for the Daily Telegraph‘s impeccable exposure of MPs’ expenses last year, reviving that newspaper’s fading reputation.
But if these are Labour’s achievements – and ones for which Derry Irvine deserves great credit – then the constitutional reforms that brought him down in 2003 should be set against them. When the Lord Chancellor straddled the great estates of the realm – presiding over the Upper House of Parliament, heading the country’s most senior court and sitting as a senior member of the Cabinet – I used to argue that he should hang up one, if not two, of his three wigs. Now that the reforms for which I argued have come into force, I can see the advantage of this constitutional “hinge” or “buffer” (sorry if this sounds like a BBC comedy show).
It all started to go wrong when the Lord Chancellor’s department changed from a quiet backwater with its private office in the House of Lords to a modern department of state responsible for a large legal aid budget. Once that happened, it was inevitable that we would need a minister in the House of Commons rather than someone who could double up as a judge in his spare time.
But look at the consequences. Legal aid has become a disaster zone. The penny-pinching that saw legal aid for personal injury replaced with “no-win, no-fee” conditional fee agreements has led to huge legal costs for the National Health Service and other public defendants, quite apart from the current row over libel. No wonder the government has announced the abolition of the Legal Services Commission.
The Judicial Appointments Commission is looking as if it may go the same way. It was snubbed by Jack Straw when it chose Sir Nicholas Wall as incoming president of the High Court Family Division, although Straw recognised the inevitable by backing down at the last possible moment. Why should any candidate for judicial office seek this sort of public humiliation – or even the embarrassment of appearing on a shortlist that is likely to be published by the UK’s few remaining legal journalists? We all know who was passed over for appointment to the Supreme Court, both this year and last.
And on which side of the balance sheet should we record the government’s expensive replacement for the House of Lords as the final court of appeal? On that, the jury is still out. The court has made no impact whatsoever on the public’s consciousness, partly because its public relations effort is so feeble and partly because it has not yet had to decide the sort of “right-to-life” case that captures people’s imaginations.
The judges seem to have settled into their “new” building, with its curious mish-mash of Edwardian gothic and pop art. They have exploited their new freedom to give majority rulings – while burdening us with nine separate judgments in important cases. They have been tough-minded and independent – but that’s what they were when they were in the House of Lords.
I still believe that Lord Neuberger was right to warn us (in my BBC interview) about the law of unintended consequences. We can already see what those were for most of the reforms I have mentioned so far. What we don’t know is whether Labour will still be in power when the consequences of setting up the Supreme Court become known. Perhaps it would prefer not to be.