Game, set and match

According to at least one Labour MP, politicians view lawyers in the same way many people view politicians: at best they don't trust them, at worst they think they are over-paid, elitist and arrogant.
It is an uncomfortable fact that, as the battle over the Access to Justice Bill enters the House of Commons, many MPs – the last hope for those seeking to change the legislation and restore the £65m paid in legal aid last year for personal injury cases – distrust lawyers and those lobbying on their behalf.
“Most Labour MPs are not lawyers, they don't like lawyers and they think they are expensive,” says Labour MP and solicitor David Kidney. “To see well-dressed, well-spoken barristers speaking on behalf of the poorest in the land would jar with a lot of Labour MPs.”
It is a view echoed by Conservative legal affairs spokesman Edward Garnier MP: “The popular perception [among MPs] is that all lawyers are on the make and cost the public too much money.”
A third source, who works in the office of a senior Labour MP, says: “MPs don't seem to have any understanding of the implications of legal aid reform. The problem [for lobbyists] is that MPs are either indifferent to legal reform or they think lawyers are expensive. Many MPs will see it [lawyers' defence of personal injury legal aid] as vested interest speaking.”
The situation has been inflamed by Lord Chancellor Derry Irvine's description of “fat cat” lawyers, media stories of legal aid excesses and the constant put-down that “lawyers would say that anyway” when they argue that legal aid should continue in personal injury cases.
As a counterbalance, both the Bar Council and the Law Society are lobbying alongside the Consumers' Association, National Consumer Council, National Association of Citizens' Advice Bureaux and charities representing people who could be adversely affected by the changes.
Given the fact that lawyers and their representative bodies have pulled together a more eclectic lobbying alliance – a classic tactic, especially when it involves the voluntary sector – you might expect a less prejudiced hearing from Labour MPs.
However, some observers argue it is no coincidence that anti-lawyer media stories have cropped up as the Bill proceeds through Parliament. They allege it is part of a Government-inspired campaign to ensure victory in the Commons and nobble the legal profession's lobbying efforts.
“Stories have been deliberately planted and set up to facilitate the passage of this Bill, which will abolish legal aid in many public interest cases,” alleges Bar Council public affairs spokesman Jon McLeod. “Legal aid has been systematically vilified on the instructions of the Treasury.”
Is this paranoia? Or are the Law Society and the Bar Council preparing their members for the fact that, with an impenetrable Commons majority of 179, the Government does not need to change a single word of the Bill?
There is already talk in lobbying circles of “managing expectations” in the next round of lobbying. Both the Bar Council and Law Society are nothing if not pragmatic. “The Lord Chancellor will get this Bill – there are large parts we support – but it is a question of whether public interest will be protected,” says McLeod.
“The main accusation in the Commons will be that lawyers don't do anything that is not in their own interest, but by working with the Consumers' Association and others we are showing there are issues of wider public concern.”
Ironically, that “wider public concern” was taken up in the House of Lords, where amendments were passed and the Government suffered three defeats. However, none of them were fatal and all are likely to be reversed in the Commons.
In truth, those seeking changes to the legislation had little success in the Lords. There was, for instance, no concession on the abolition of legal aid for personal injury claims (even though medical negligence cases are exempt). Meanwhile, the amendment to introduce an “objective clause” to outline the purpose of the Bill has been dismissed by Lord Irvine as a “gimmick”, and will be axed in the Commons.
Concessions were nevertheless won on the likes of conditional fees for matrimonial property rights and the Criminal Defence Service, and Lord Irvine was also forced to back down on moves to increase some of his powers. However, many observers believe these elements were built into the Bill as potential “sacrifices” to ensure other, arguably more fundamental, areas remained unscathed in their passage through the Lords.
“Irvine has given more concessions than was expected – that's true,” says Law Society parliamentary unit head John Ludlow. “But it has not been easy and on some issues he has been intransigent – such as legal aid for personal injury cases.”
For the Commons stage, the Law Society is concentrating on two arguments. First, it is pushing for the continuation of legal aid for personal injury cases, or at least a concession to cover the most vulnerable in society, such as the young, old, disabled and ethnic minorities. Second, it wants to see the budget for civil legal aid cases ring-fenced so that it is not eaten up by criminal aid work.
The Bar Council, which is also arguing for the continuation of legal aid for personal injury cases, has other issues on its agenda. These include: concerns over potential conflicts of interest inherent in a Criminal Defence Service; anxieties over the ability to fund the proposed Community Legal Service at a time when law centres are closing due to local authority cutbacks; and the potential damage to high street law firms if they are cut out of legal aid work by block contracts.
But in the Commons, the battle will be over legal aid. It is probably the one element MPs will be able to grasp, especially if they are confronted by images of angry constituents knocking on their doors in 18 months' time asking why they cannot get it.
Lobbyists must highlight these fears. They need to stress that personal injury is the thin end of the wedge and if legal aid cover is lost then all other access to legal aid will go at a later stage. No doubt they will also raise questions about whether the insurance industry, which will pick up the bill for future personal injury claims, will be able to provide an affordable service.
It seems the Law Society and Bar Council would settle for a compromise on personal injury cases – with legal aid being continued in cases brought by the disabled and other vulnerable groups. Both will stress that the partial withdrawal of legal aid is a major public issue affecting constituents rather than lawyers.
The Law Society has used its network of regional members to approach local MPs. But, realistically, both the society and the Bar Council will now focus their efforts on smaller groups of MPs, such as: David Kidney, chairman of Labour's backbench Legal Services Committee; Edward Garnier; members of the Home Affairs Select Committee such as chairman Chris Mullin who, as a journalist, exposed the miscarriages of justice in the Birmingham Six case; and candidates likely to be elected to the Commons Standing Committee, whose job it will be to study the Bill line-by-line as it passes through the Commons.
Although the Standing Committee will have a built-in Labour majority, Garnier is likely to win one of the 18 seats.
But there is a second front in all lobbying battles that goes beyond Westminster and Whitehall. It is played out in the opinion columns of national and regional newspapers, on television and radio.
Ludlow hints at a more high-profile public awareness campaign during the Commons readings, but rejects criticism that more noise should have been made earlier to bring the issue to the attention of MPs in their constituencies.
Why, for instance, were regional newspapers and television stations not approached to highlight cases where, for an ordinary person, legal aid meant the difference between success and failure?
Is it because the Law Society is nervous about upsetting a government – which it expects to be in power for at least another eight years – over a Bill that is in its final stages and unlikely to change?
“There has not been a public campaign so far, but we are now looking at various things such as advertising,” says Ludlow. “We don't want to accuse the Government of too much – it could get nasty. A decision has to be taken about either going for a big public campaign, and how that portrays the Government, or [continuing] with behind-the-scenes work.”
According to another source, the idea of an advertising campaign has already been dismissed – and probably rightly so because, in the eyes of some backbench Labour MPs (and most of the public), it would simply reinforce their view that this is about self-interest.
The Bar Council argues that the resources have not been available. But there is certainly an argument that it and the Law Society could have been more publicly supportive of legal aid when it was being attacked as being wasteful.
The first Commons reading is expected just after Easter. The Law Society's lobbying effort begins in earnest on Wednesday with a lunch for 50 to 60 MPs and a handful of peers. It is an annual event that will now have more of an edge to it. What is traditionally a friendly get-together for solicitors who have graduated to the Commons and the Lords, this year the main topic of conversation will be the Access to Justice Bill.
“It is not a direct lobbying activity,” says Ludlow, “it is an opportunity, as a professional body, to keep solicitors in the Commons informed of what is going on. It doesn't mean that they do things on our behalf, or always agree with us.”
But the lunch, coming less than 24 hours after the Bill completes its final reading in the Lords, could provide a springboard for the Law Society's arguments. The society believes the Lord Chancellor's Department and the Government are vulnerable over personal injury cases, and this is where it will concentrate its efforts.
But it is not just the legal profession that is bending MPs' ears. Last Monday, Labour's backbench Legal Services Committee, which advises the party's home affairs experts, met with representatives of the insurance industry. It wanted to explain how it would provide the funding for personal injury cases once legal aid has been removed and outline its belief that this would be extended to commercial and even libel (not currently covered by legal aid) cases.
Committee chairman Kidney, who has also met with the Bar Council and the Law Society, says: “The abuse of legal aid has been exaggerated. The proof of the pudding will be whether the insurance market can provide the service at an affordable cost, and not exclude people.”
Garnier warns: “At the second reading in the Commons, MPs will be given a Whips' office handout telling them how to vote.”
Garnier is clearly making a party political point, but most people seem resigned to the Bill having a swift and unmolested passage. If the lobbyists are to be successful, they will have to convince a large number of MPs to support them. And, as we already know, the MPs don't even like them.