James Sandbach reports back from the conferences, where, despite some promising meetings, justice was once again low on the parties’ lists of priorities.
Some media reports have observed that despite the excitement of these gatherings taking place in person once again, this year’s party conference season felt strangely flat. I’ll leave that commentary to the pundits as the purpose of this article is to look at what the parties had to say about access to justice. The short answer, of course, is overall ‘not much’, as this has always been one of the lowest-priority, most neglected areas of policy in the political arena, sometimes attracting the odd quip (like the home secretary’s disgraceful dig at ‘activist lawyers’), soundbite or interesting fringe meeting, but rarely central to any core political message or strategy. However, there were a few interesting discussions to report.
Liberal Democrats: remote justice
Starting with the Liberal Democrats conference – unlike the others, this was still a remote event, with participants struggling with the tech platform. In 2020, all the party conferences were held remotely – online conferences can be great, but my own experience of dipping in and out of last year’s events was that they don’t lend themselves well to remote delivery, as managing main hall, simultaneous fringes, breakouts and the numbers of party faithful folk and external organisations taking part can overwhelm the tech logistics. This year’s much depleted Lib Dem offering felt like a metaphor for a party struggling for space and identity in the political landscape.
There were the usual conference debates, including motions on a Digital Bill of Rights, the Uyghur genocide, Afghanistan, and violence against women and girls, and long debates about values, which included equality and human rights, plus a range of fringe events, but only one meeting on justice. Organised by Rights Liberties Justice (the Lib Dem Lawyers Association), a panel discussed ‘fixing our broken justice system’ with Jonathan Marks QC, Wera Hobhouse MP, Lubna Shuja (vice-president of The Law Society), Mark Fenhalls QC (vice-chair of The Bar Council) and the Legal Aid Practitioners Group (LAPG). The crisis was laid bare, from courts overwhelmed with backlogs to the disappearance of legal aid from the high street and strains on what remains of the publicly funded bar, but for the conference this somehow did not feel like the number one priority.
Labour: incentivising pro bono
In Brighton, Labour was struggling with its own internal issues, but shadow justice secretary David Lammy is undoubtedly a rising star. One of the first fringe events was the Society of Labour Lawyers’ meeting. Fixing legal aid was discussed, but it was too early to make any big spending commitments, although Lord Falconer repeated the Bach Commission’s key recommendation that there should be a legislated minimum ‘right to justice’ standard or constitutional guarantee.1The right to justice: the final report of the Bach Commission, September 2017.
The event then shifted focus to defending the Human Rights Act 1998, stated as one of New Labour’s proudest legacies. Lord Falconer took the view that there should be a written constitution to protect rights from legislative repeal. Talk of ‘written constitutions’ is not traditionally part of Labour’s thinking, although the main conference hall spent much of its time debating the party’s internal rulebook.
Lammy, by contrast, was keen to move the debate onto policy areas and campaigning issues for which there is more popular support, such as measures to address violence against women and girls and improve victims’ rights. Advice and legal sector representatives held an open and candid consultation session with him, addressing challenges about how to reframe some of the debates around civil justice, legal aid and advice services, and making policy connections with jobs and well-being.
Later that day, Lammy went on to deliver his set-piece speech, announcing that ‘a Labour government would support the introduction of a new national pro bono service. With binding pro bono targets to support those who can’t afford legal advice and are ineligible for legal aid’.2Conference speech: David Lammy MP, Shadow Secretary of State for Justice, Labour, 28 September 2021.
This was a surprise and reported in the legal media with varying degrees of inaccuracy. The following week, he published an article in the Law Society Gazette
explaining that a ‘state-funded national pro bono centre’ would ‘work alongside’ the legal aid system and not replace it. He explicitly drew on the Australian model, proposing that firms seeking to secure government contracts should be required to meet a pro bono target.3David Lammy, ‘Pro bono centre would work alongside the system, not replace it’, Law Society Gazette, 5 October 2021.
The article repeatedly stresses that pro bono work cannot replace the broken legal aid system, though it is not clear what Lammy means by a state-funded pro bono centre or how it would work with existing charities in the pro bono landscape. There is an existing National Pro Bono Centre that for many years physically co-located the two big pro bono charities, Advocate and LawWorks, with others, and provided a hub for initiatives such as the Ministry of Justice (MoJ)-backed Litigant in Person Support Strategy and support for Pro Bono Week.
The issue of procurement incentives, though, is an interesting one, and opportune to explore as government is currently reviewing procurement policy. There are different models and approaches to building incentives into the ‘gateway’ for firms working with government, from the Australian pro bono hours target, which, crucially, is voluntary and aspirational (something that Lammy did not specifically mention), to the Irish model, which requires law firms to offer at least five per cent of the value of the invoiced legal fees (for public sector work) in corporate social responsibility projects or pro bono services. LawWorks’ response to the government’s green paper on procurement explores the options and calls for consultation with the sector; it supports incentives and incentivising approaches, but explicitly rejects mandating or introducing regulatory requirements around undertaking pro bono work.4Transforming public procurement, LawWorks, March 2021.
Conservatives: rhetoric vs reality
Finally, it was on to Manchester for the Conservative party conference. The theme of ‘levelling up’ was writ large across the conference, and in this vein a key fringe meeting, co-organised by LawWorks, LAPG and the legal professional bodies, discussed ‘levelling up justice’. James Daly MP, leading for the All-Party Parliamentary Group on Legal Aid, which has recently undertaken an extensive inquiry into the sector’s sustainability, stressed the importance of being able to build sustainable mixed criminal and civil practices as small and medium enterprises in local communities, combining legal aid and private work. This theme was strongly echoed by Law Society president I. Stephanie Boyce, who challenged whether the rhetoric could meet the reality when, in so many towns, court buildings have been shut, Law Centres have closed down and small firms struggle to survive. The legal sector should be a partner in regional economic regeneration, community infrastructure, and building local career opportunities.
Alex Chalk MP, recently moved from the MoJ to the post of Solicitor-General, stressed the work that has been done on early legal advice under the Legal Support Action Plan,5Legal support: the way ahead, CP 40, February 2019.
and the additional funding made available to Law Centres and specialist agencies during the pandemic (from the beginning of the first lockdown) through the Community Justice Fund. However, Ciara Bartlam, a barrister with Garden Court North Chambers, who is a trustee of Greater Manchester Law Centre, stressed the contrast between the picture offered by ministers and the struggles and funding scarcity on the ground. In a lively Q&A session, the option of a levy on City firms was raised and Chalk said that he had looked at this with some interest (a proposal on this was first floated in 2015 by Michael Gove when he was lord chancellor). He stated that no such plans were being pursued, and the risk of unintended consequences was flagged (eg, City firms withdrawing from pro bono). The audience challenged him, though, on what could be done to convince the Treasury to invest more in the justice system.
The following day, a further fringe meeting took place with justice ministers, the professional bodies and the Society of Conservative Lawyers, and at another event, hosted by The Spectator, the new lord chancellor, Dominic Raab, was quizzed about the huge court backlogs – he admitted that the situation was unlikely to normalise for at least another year. There was similar disappointment when Lord Wolfson, at the legal fringe meeting, all but admitted that readmission to the Lugano Convention (which deals with cross-border civil matters) was unlikely. At the fringe meeting came Raab’s insistence that he was ‘pro human rights and pro judge’, despite his speech earlier in the Conference Hall in which he described the Human Rights Act 1998 as ‘nonsense’ and pledged to ‘overhaul’ it before the next general election.
Finally came the prime minister’s speech, with a few more quips about lefty lawyers – or, more specifically, ‘lefty Islington lawyers’. I’ll leave it to others to explore the ironies behind the statements of the former Islington resident, but beware lefty lawyers - we may yet be in for a torrid time.