Law and Politics. Closed Whitehall cynicism must shift

THE LORD Chancellor's Department, which dominates the careers of so many, is facing a wind of change – or at least a strong breeze.

The LCD is no longer simply a body administering the judicial system with responsibility for judicial appointments. It is now an increasingly politicised ministry dealing with fundamental and high profile changes to the law. But it has been slow to react to its new incarnation.

Both officials and their political masters are still trying to get to grips with this changing role and increased political prominence.

The LCD's importance in all our lives should not be underestimated. The issues it deals with range from access to justice to fundamental law reforms.

Certainly politicians will not be filling the gap if the department gets it wrong. Most MPs have only a passing interest in law reform and very few have any expertise. Most rely on the media for information. So it is important that the LCD gets it right. It may have some way to go.

There have been suggestions voiced privately by some MPs that the LCD should be more open to public consultation on law reform matters. For instance, The Law Society found it to be heard or even to arrange appropriate meetings during the drafting stages of a recent Bill.

This is an infrequent occurrence. But if the Law Society occasionally finds it hard to voice concerns on behalf of its professional membership on issues of law reform, what chance do other interested organisations, the general public, or even the odd MP, have of influencing the process?

Peter Riddell of The Times told a recent conference that the Scott Inquiry had exposed the culture of Whitehall, essentially summed up as contempt for Parliament and cynicism about the political process.

If LCD officials were to suffer from such cynicism, it would be understandable, given the way in which the Daily Mail has recently been allowed to dictate government policy.

But surely a better way forward for the LCD is wider consultation outside individual departments over law reform, particularly in sensitive areas such as family law.

Labour party legal affairs spokesman Paul Boateng MP made such a suggestion during his widely admired opening speech to the second reading debate on the Family Law Bill. Boateng suggested setting up an outside advisory committee on the family to advise the LCD and commission research.

He made this suggestion because he did not “…believe that the department as constituted and the civil servants within it necessarily form the best structure and body of people to determine these matters”.

Such a change in the policy-making culture of the LCD and other departments would suit all concerned.

The fact is that Scott has thrown the system into turmoil. It is impossible to determine where the buck stops and who is responsible for what. If ministers refuse to resign when their conduct is questioned and the doctrine of ministerial responsibility is effectively dead, do civil servants now carry the can?

Apparently so. Even Scott's strongest critics agree that Attorney-General Sir Nicholas Lyell QC should have gone. Yet he and other politicians were able to read the report a week in advance, unlike officials, and defend themselves in public.

Some of the 20 officials criticised in the report have yet to hear whether they will be disciplined. Two departments are still deciding. One will report only at the end of May.

In this kind of climate, civil servants need to consult widely, even if it is only for their own protection.

If a recent story is anything to go by, they need all the protection they can get. A Secretary of State appearing on Question Time some weeks ago recognised a questioner in the QT audience as a junior official in his department. On returning to his office, the Secretary of State looked up the official's name and reported him. The official is now up for a disciplinary hearing.

Faced with this kind of sense of humour failure from their political masters, civil servants had better start to look on the consultative process, not as a burden but as an extension of the democratic system.

And one that will provide a welcome safety net when things go wrong.