General Election 2017: what the party manifestos say about law and justice

Posted on 29th May 2017 in Points of Law

Though other issues may loom larger with some voters, most lawyers will want to know how the parties’s manifestos compare on key issues of law and justice. We hunt for the few specific proposals amongst the vague aspirational waffle.

Legal aid and Access to justice

After years of austerity and cuts in legal aid, the justice system is suffering badly. Courts have been closed, facilities in those that remain open are woefully inadequate, court fees have been imposed at levels that severely inhibit access to justice, and judges are having to cope with the additional burden of managing cases in which one or more of the parties has no legal representation.

In the last general election (2015), the only national party offering to restore the cuts in legal aid were the Greens. This time around, they have not made the same commitment, with a manifesto that is big on feelgood aspiration but decidedly short on specifics. All the Greens now say is that they will

Defend the Human Rights Act and UK membership of the European Convention on Human Rights, and reinstate funding for the Equality and Human Rights Commission.

The Liberal Democrats have promised to

Conduct an urgent and comprehensive review of the effects of the Legal Aid, Sentencing and Punishment of Offenders Act on access to justice, particularly funding for social welfare appeals, and domestic violence and exceptional cases.

They also make a specific pledge to “Reverse the massive increases in court and tribunal fees, which prevent many from pursuing good cases.”

Labour have said they will

consider the reinstatement of other legal aid entitlements after receiving the final recommendations of the Access to Justice Commission led by Lord Bach”

They will also

reintroduce funding for the preparation of judicial review cases” and “review the legal aid means tests, including the capital test for those on income-related benefits.”

However, when it comes to court fees, they are not so free handed, perhaps sensing the opportunity of taxing wealthier litigants:

Labour will not prohibit the courts from raising monies to provide services, but we will introduce a ratio to establish the maximum difference between actual costs and charges levied.”

For the Conservatives, however, access to justice is not about restoring the cuts to legal aid which they imposed; rather it is about selling the justice system as a service, and talking it up in the face of those (whom can they mean?) who would denigrate it:

We cherish our strong and independent judiciary. Our courts and judiciary are respected as the finest in the world. Legal services are a major British export and underpin our professional services sector. We will continue to modernise our courts, improving court buildings and facilities and making it easier for people to resolve disputes and secure justice.

Easier, if they can pay for it, seems to be the message, in the absence of any mention of legal aid other than to say, pointedly,

We will strengthen legal services regulation and restrict legal aid for unscrupulous law firms that issue vexatious legal claims against the armed forces.”

Meanwhile UKIP, when it comes to access to justice, seem almost wholly focused on the alarming prospect of a certain kind of alternative dispute resolution:

“A society that can pick and choose what legal system it lives under gradually ceases to be a society at all.
The growth of sharia councils is of great concern to the public, as is the apparent unwillingness of the political class to prevent them proliferating. UKIP will take action: we will establish a legal commission to draw up proposals to disband sharia councils. It is simple: there should be one law for all.”

Presumably they will also be abolishing commercial arbitration, and the Beth Din.

Crime

The Conservative party is supposedly the hottest on law and order, but discussion prompted by recent events shows that since 2010 they have cut police numbers and funding to such an extent that this reputation may no longer be deserved. Instead, they are really the party of minimal investment in public services. As with legal aid cuts, the changes don’t always end up saving money, tending instead to shift the burden onto another part of the public purse.

The big thing on crime policy in the Tory manifesto is presented as a positive rationalisation, but one wonders whether it is yet another attempt to save money. They are going to shut down the SFO, the Serious Fraud Office which goes after big bad business and big bad fraudsters, and merge its operations into those of the National Crime Agency. The intention, they say, is to 

strengthen Britain’s response to white collar crime” by “improving intelligence sharing and bolstering the investigation of serious fraud, money laundering and financial crime”.

They may be right about this, but the former director of the SFO, Rosalind Wright QC, writing in The Times last week,  doesn’t seem to think so. She told The Brief on 25 May: 

No other body has the sole mission and objective of tackling serious and complex fraud and corruption; no other body has the expertise, built up over many years, to investigate and prosecute huge, international and challenging cases that other law enforcement agencies are not equipped to deal with and relegate to the too difficult box.”

The last two years of Tory rule have seen the worst prison crisis in a generation. What are they planning to do about it? The Prisons and Courts Bill was going to address the issue but that died when parliament was dissolved for the snap election. Presumably something similar will replace it.

But one thing seems clear: there will be no soft options when it comes to sentencing. According to the Tory manifesto

Community punishments do not do enough to prevent crime and break the cycle of persistent offending”.

But prisons could do better:

Prisons must become places of safety, discipline and hard work, places where people are helped to turn their lives around.”

That suggests they are not such places now, despite the efforts of four different Justice Secretaries in almost seven years of Tory rule.

Labour will address the prisons crisis by recruiting 3,000 more prison officers and by insisting on a “personal rehabilitation plan” for each prisoner in the system. Moreover, they will put a stop to the building of private prisons and “no public sector prisons will be privatised”.

The Liberal Democrats want to “Transform prisons into places of rehabilitation, recovery, learning and work, with suitable treatment, education or work available to all prisoners; adopt a holistic approach to prisoners with multiple problems, and ensure that courses started in custody can be completed on release.”

More specifically, to address a particular minority problem, they want to “Ensure that trans prisoners are placed in prisons that reflect their gender identity, rather than their birth gender.” (This ties in with their plan to revisit the Gender Recognition Act 2004, something Labour have also said they wish to do.)

They are more positive about non-custodial sentences and want to promote “community justice panels” and “restorative justice” to encourage rehabilitation.

But the Liberal Democrats most headline-grabbing proposal on criminal justice has been their plan (following in the footsteps of more progressive nations such as Canada and some states in the USA) to legalise cannabis. Their intention is to:

Break the grip of the criminal gangs and protect young people by introducing a legal, regulated market for cannabis. We would introduce limits on potency and permit cannabis to be sold through licensed outlets to adults over the age of 18.

They would also “Repeal the Psychoactive Substances Act which has driven the sale of formerly legal highs underground.” But it’s not clear how they would then address the licensing and sale of regulated “legalised” highs, unless they think the availability of legal cannabis would kill the market for dubious artificial substitutes.

As for UKIP, when it comes to crime, it’s the perceived failure of multiculturalism that seems to be firmly in their sights. Their proposals are focused on FGM, honour crimes and banning the wearing of a niqab or burqua in public places.

Face coverings such as these are barriers to integration. We will not accept these de-humanising symbols of segregation and oppression, nor the security risks they pose.”

(In the same manifesto there are pictures of several people wearing face coverings in what appears to be a positive context: one of them is a bee-keeper, whose face is covered by a protective mesh, in the section about the environment; the other, in a bit about the NHS, shows a surgical team in face-masks performing an operation, though presumably not one involving female genital mutilation or what the manifesto calls, in quotation marks, “breast ironing” — which UKIP want to make a “specific criminal offence”.)

As for punishment, in accordance with a strong tendency to overstate the obvious, UKIP also remark:

The Sentencing Council produces guidelines listing ‘aggravating factors’ which make a crime more serious, so it may incur a higher sentence on conviction. We propose that so-called ‘honour crimes’ should be added to that list. We will also make it clear that the aggravating factor of ‘racial or religious motivation’ may apply to any offender, of any race or faith.”

The Greens too, in their very vague and aspirational manifesto, would 

implement a UK-wide strategy to tackle gender based violence, including domestic violence, rape and sexual abuse, FGM and trafficking”.

Employment

Though traditionally seen as the party of the bosses and employers, the Conservative party under Theresa May is now seeking to promote itself as the party of the workers by offering a raft of new workplace rights and an element of workplace democracy. The problem, though, is how workers can enforce these rights after the Conservative-led government introduced employment tribunal fees at levels unaffordable to most, which have substantially reduced the number of claims pursued.

The Tories’ worker-friendly manifesto commitments include a requirement on listed companies to

nominate a director from the workforce, create a formal employee advisory council or assign specific responsibility for employee representation to a designated non-executive director”

as well as proper protection for those working in the “gig” economy.

Labour address the behaviour of big business with a promise to “consult on bringing forward appropriate legislation” to ensure that company directors owe a duty directly not only to shareholders (ie the owners of the company that appoints them) but also to employees, customers, the environment and the wider public. Legislation will also address the problem of excessive senior executive pay by introducing an “Excessive Pay Levy”.

Employment tribunal fees would be abolished as part of a “20-point plan for security and equality at work” which will also “ban zero hours contracts” and unpaid internships, enforce gender pay auditing and introduce four new public holidays.

The Liberal Democrats would address workplace democracy by giving staff in listed companies with more than 250 employees a “right to request shares, to be held in trust for the benefit of employees”. They would also strengthen worker participation in management by having staff members on remuneration committees and giving employees in listed companies the right to be represented on the board. “We will change company law”, they say, “to permit a German-style two-tier board structure to include employees”.

They, too, would “Reverse the massive increases in court and tribunal fees, which prevent many from pursuing good cases” (perhaps forgetting their role in the coalition government that introduced them in the first place).

The Greens just seem to think we all work too hard. They want to “Phase in a 4 day working week (a maximum of 35 hours)” as well as abolishing “exploitative zero hours contracts”.

UKIP don’t want to abolish them but they do think it necessary to “significantly tighten up rules on zero hours contracts and severely limit their use”.

Otherwise, UKIP’s headline employment idea is to introduce legislation requiring employers to “advertise jobs to British citizens before they offer them overseas”. This is actually not that different from one of Labour’s 20-point plan promises, to “Legislate to ensure that any employer wishing to recruit labour from abroad does not undercut workers at home”. (This goes back to what in 2009 Gordon Brown called “British jobs for British workers”.)

Media

The big issue for media law is newspaper regulation. Specifically,

  1. Should the Leveson inquiry recommendations be enforced in full, including the costs provisions of section 40 of the Crime and Courts Act 2013?
  2. Should the second part of the Leveson inquiry go ahead?

These were the subject of a recent consultation, which is now closed, but was not responded to by the government before the dissolution of parliament. (What is its status now? Will the incoming administration take any notice? Probably not.)

The Conservatives have come out clearly against newspaper regulation, and have recanted on legislation they previously supported, saying:

We will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press. We will repeal Section 40 of the Crime and Courts Act 2014 [sic], which, if enacted, would force media organisations to become members of a flawed regulatory system or risk having to pay the legal costs of both sides in libel and privacy cases, even if they win.”

Labour, on the other hand, take the opposite view:

We will implement the recommendations of part one of the Leveson Inquiry and commence part two which will look into the corporate governance failures that allowed the hacking scandal to occur.

Moreover, Labour would also “hold a national review of local media and into the ownership of national media to ensure plurality”.

The Liberal Democrats also have media plurality in their sights, with plans for Ofcom to launch an assessment of it and to review of the  ‘fit and proper persons test’, as well as addressing the issue of  “concentrations of power in the digital economy” (which presumably isn’t limited to media companies).

They plan to introduce a “digital bill of rights” that “protects people’s powers over their own information, supports individuals over large corporations, and preserves the neutrality of the internet”.

As for Leveson

In light of the press’s failure to engage in effective self-regulation, seek to ensure delivery of independent self-regulation, and commence part two of the Leveson inquiry as soon as practicable.”

The repetition of the phrase “self-regulation” suggests this hasn’t been fully thought through. Self regulation is what has failed. It’s independent regulation (ie not by the state, and not by the media themselves) that needs to be promoted.

UKIP don’t appear to have any concerns about media regulation, at least not in their manifesto, but the Greens share the concerns expressed by Labour and the Lib Dems about media ownership and plurality. They want to ensure that “no individual or company owns more than 20% of a media market”.

Family

Labour has promised something very specific, namely the introduction of a no-fault divorce procedure. None of the other parties propose anything in relation to divorce (or the related issue of money claims).

However, almost everyone (except UKIP) proposed to tackle the topical issue of domestic violence.

The Conservatives’s specific pledge is for a new Domestic Violence and Abuse Bill

to consolidate all civil and criminal prevention and protection orders and provide for a new aggravated offence if behaviour is directed at a child”.

The Act would also enshrine a definition of domestic violence and abuse in law and there would be a new domestic violence and abuse commissioner. 

Meanwhile Labour want to reverse the requirement for victims of domestic abuse to pay doctors for certification of their injuries. They too wish to 

legislate to prohibit the cross examination of victims of domestic violence by their abuser in certain circumstances”  and to ban “the use of community resolutions as a response to domestic violence”.

The Liberal Democrats also plan to 

Review the investigation, prosecution, procedures and rules of evidence in cases of sexual and domestic violence.”

UKIP meanwhile have focused their attention, once again, on the issue of “forced adoption” (better described as non-consensual adoption – the consent, or lack of it, being that of the parents).

UKIP say up to 96 per cent children adopted from public care are forcibly adopted, against their parents’ wishes, though it’s not clear where they get their figures from. They say these concerns, raised in their 2015 manifesto, have become even more pressing. Looking at their 2015 manifesto, however, they did not provide any figures, merely saying There is also concern among the public at rising levels of ‘forced’ adoptions.”

It’s not clear what UKIP want to do about it, other than to increase public awareness through greater transparency — although perhaps without understanding how much of it there is already. They include: 

  • Removing the current blanket ban on media reporting of placement and adoption proceedings and allowing journalists to report on such cases on the same basis as other family law proceedings.
  • Publishing all case summaries, skeleton arguments, judgements and other documents relating to Family proceedings as a matter of course, on an anonymised basis.
  • Requiring expert witnesses to list previous court cases in which they have given evidence .
  • Promoting more extensive use of Special Guardianship Orders (e.g. in favour of grandparents) so that children can retain links with their birth family.
[NB for a more detailed analysis of the parties’ family law manifesto proposals, see the survey on the Transparency Project blog.]

 

Read the manifestos

Conservative (PDF)  

Labour (PDF) 

Liberal Democrat (PDF) 

Greens (PDF) 

UKIP (PDF) 

 

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

 

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