Is Norman Tebbit the voice of reason?

You know when something is seriously wrong with the world when you are on the same side of an argument as Lord Tebbit. Not exactly known for his compassion, he famously urged the unemployed to get on their bikes and look for work, he’s not a politician you would think of as a supporter of any sort of state funding for, well anything. However, this week he has rather surprised everyone and come out fighting to preserve legal aid for children in medical negligence cases.

I am sure there is still plenty Lord Tebbit and I would disagree on, even within the legal aid, sentencing and punishment of offenders bill, but to give him his due, in this case he has done what the government has quite obviously failed to do, that is listen and read the arguments.  It will come as little comfort to those campaigning against the more draconian aspects of the bill and who have come up against a brick wall of government intransigence that Tebbit has found cabinet ministers reluctant to speak to him as well.

Whether Ken Clarke is remotely concerned that such a significant figure as Tebbit is speaking out against parts of his bill is doubtful: his latest article in the Guardian, entitled Legal aid is safe where it matters most, suggests he is unrepentant.  The minister charged with guiding the bill through the Lords, the Liberal Democrat Lord McNally, has also warned campaigners not to expect substantial changes, saying it arrived in ‘pristine condition’ from the Commons.

There is, obviously, always a lot of posturing in politics.  Sometimes, as during the increasingly pointless prime minister’s questions, that is all there is.  And I suppose MPs can be forgiven a certain amount of posturing because that’s often what they have to do to get selected and elected.  The House of Lords, on the other hand, should be different.

That’s one benefit (probably the only benefit) of having an unelected second chamber, which is that peers don’t have to worry about an electorate or curry favour with donors, however covertly.  There can be serious, detailed debate about important, but sometimes technical and boring, issues, often by people with a detailed understanding of the subject.

How can Lord McNally be so sure his bill is ‘pristine’, when he himself argued at a Lib Dem fringe meeting that he couldn’t be expected to understand every aspect of the bill because he isn’t a lawyer?  Shouldn’t, then, he be listening to those who are the experts?  It’s all very well to say you can’t allow ‘vested interests’ to govern policy, but sometimes those with ‘vested interests’ are the ones who know about the issue.  At the very least you should be listening to them, otherwise you're just posturing.

The government’s attitude and its failure to listen to the experts is particularly cavalier given the serious implications of its cost-cutting proposals.  Most troubling is that ministers seem genuinely to think that the law of unintended consequences won’t apply.  There appears to be no acknowledgement at all that these proposals will fundamentally alter the relationship between the citizen and the state.

In the Lords committee debate on Tuesday Labour peer Lord Howarth described ‘the common law and access to justice with support through legal aid’ as ‘intrinsic to our national identity'.   No-one is arguing, at least not seriously, that we should have a national legal service to mirror our identity-defining NHS, but it’s a lame argument to keep citing this as a reason for the removal of many areas from the scope of legal aid.

What Ken Clarke and his even-less-clued-up sidekicks McNally and Jonathan Djanogly have completely failed to address is how people are supposed to enforce their rights when they can’t afford a lawyer, which in all likelihood will be most of us.  In the just and fair society we like to think we are (although I would accept this premise is at best arguable right now) equality of arms is essential to ensure citizens can hold the state and big business to account.

The government may well think it’s inappropriate for the state to fund legal advice for   individuals unless their life liberty or home is at risk, but who does it think is paying for the lawyers who will surely turn up to defend the government in court against challenges to their poor decision making?  And in what world is it fair for individuals of limited means to have to represent themselves against multinational corporations with legal teams in double figures because they can’t afford a lawyer?

The failure of the government to engage in serious debate about the proposals is highlighted by Clarke’s comment in his Guardian piece that ‘those who defend the status quo have fallen prey to a kind of well-intentioned legal paternalism’.  To be totally honest, I have no idea what he is talking about.  All those fighting against the bill accept cuts need to be made and have proposed alternatives.  It is just that the government isn’t listening.

He goes on to say that the deregulation of the legal sector, which I will most certainly not let him claim credit for, will in time lead to cheaper and more accessible legal services for the public.  I don’t doubt that to be the case, but I am not convinced that the first targets for legal innovators will be the sort of social welfare cases that are bearing the brunt of the cuts.  Lord Tebbit may want to avoid being in the business of making ‘rich lawyers richer’, but I can assure him rich lawyers do not do civil legal aid work.

At the heart of this is not just a need to make budget cuts but a need to find an easy target.  The sort of people who need civil legal aid aren’t, on the whole, the sort who live in Clarke's or Djanogly’s constituencies.  The firms involved in civil legal aid aren’t large corporations that might make donations to the Tory party.  And even though more legal aid is spent on criminal cases (where some of those rich lawyers hang out) than civil cases, cutting the criminal aid budget could prompt a wave of human rights challenges.

So far the government has been indifferent that it has no friends over the bill and offered few concessions.  Whether the senior Tory peers uneasy about the bill can succeed where the experts and several thousand lawyers have failed remains to be seen.  Lord Tebbit has said he quite enjoys being on the side of the angels.  It's not a place I ever thought I'd see him.  It certainly is a funny old world.

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