Stumbling government reforms no match for judicial brilliance
The excellent Legal Services Research Centre (LSRC) of the Legal Services Commission held its biannual conference in the imposing setting of Greenwich Naval College at the end of June. Major topics of concern were the pursuit of quality and the identification of need for advice. One issue screamed its absence, however: research into future plans for controlling the legal aid budget—in particular, the introduction of competitive tendering.
This absence is not really the research centre's fault. Ministers are determined to drive ahead— largely because they can see no alternative and the itinerant Lord Carter (who went on to recommend massive “Titan” prisons) has told them that this is the way forward. Alas, research in the US, the only country that has tried flogging off bundles of legal cases to the lowest bidder, indicates that the problems of competitive tendering are legion. It is only a pity that ministers are not interested in commissioning the LSRC to do any work in this area. Could it be that they fear the results? Or are they de-mob happy and beginning to consider that they will not be around to see the chaos that arises as defendants are deprived of any choice of their lawyer; firms develop cartels; and no one is able to plan much beyond a short contract period?
Sir Alan Goes for It
Sir Alan Beith MP, as now he is, believes that the attorney general should no longer be a politician. He does not like the memory of the Iraq war; sales to Iraq before that war or the halting of the corruption enquiry into BAE Systems PLC. He has chaired a House of Commons committee which has said so once and has now said so again.
Sir Alan chairs the House of Commons Justice Committee that, in its previous life, was the Constitutional Affairs Committee. Notwithstanding the creation of a joint committee of both Houses of Parliament to look at the draft Constitutional Renewal Bill that proposes only limited amendment to the attorney's role, Sir Alan convinced his own committee to pre-empt the joint committee with a rapid response reassertion of the arguments for the demise of the attorney.
Sir Alan has little time for the prevarication of the government's Bill. This, indeed, does little except remove the attorney's decision-making in individual cases except where national security issues are concerned. Sir Alan's quip is that the Bill is more about “constitutional retreat” than “constitutional renewal”. There is some truth to this. The Bill begins by reversing the ban on protesting within a kilometre of Parliament without police permission. Its provisions on the attorney give no recognition to the difficulties that have followed the BAE affair where, technically, Lord Goldsmith had no power to take any decision. Sir Alan is right to point out that it is no answer to the criticism that followed to extend the attorney's powers. It is this sort of provision which dogs the government's attempt to take a bold line on the constitution.
Bingham on Top Form
Lord Bingham delivered another trademark high quality judgment in the Davis case (R v Davis [2008] UKHL 36, [2008] All ER (D) 222 (Jun)) that had Jack Straw scrambling away to get statutory authority for witness anonymity. He retires in the summer and let us hope that his successor, Lord Phillips, will maintain the standard that we have come to expect.
One indication of Lord Bingham's enormous success is his almost total absence of a press profile. This time, as so often before, he delivers a devastating attack on current practice or policy. You would have thought the Daily Mail would be slavering at the mouth to bring him to earth. But, not a bit of it. Lord Bingham can walk through the Westminster crowd unrecognised and unknown.
Lord Bingham's speech follows a pattern—showing an interest in the history of the common law right to confront your accuser; passing to observe that a number of US states took up the provision and put it in their constitutions; tracing its passage into the European Convention on Human Rights; and ending up with a clear indication that overruling such a provision at least requires legislation. Whether you are in favour of such provisions or not, his logic in requiring Parliamentary authority is impeccable and a good deal superior to that of the Court of Appeal below where Lord Justice Judge was happy to invoke the “innate authority” of the court to allow modification of basic principle protected by the European Convention and the common law alike.
