Politics and the Law. Coming up labour roses

A Cabinet Committee this month considered dropping the Family Law Bill despite the fact that it had passed its stages in the Lords and such a decision would probably mean the resignation of the Lord Chancellor, Lord Mackay.

Would a Labour government, led by a barrister and supported in the Lords and Commons by two canny political operators, one of whom has direct access to the leader, be less likely to land itself in such a pickle.?

The main political parties are coming to realise the importance of legal policy in political terms. There was a time when they believed Law Commission Bills would be passed without arousing public interest, and the Lord Chancellor's personal endorsement was sufficient to see a Bill through the Lords and Commons without a hitch.

This is no longer the case as recent events over the dropping of the Family Homes and Domestic Violence Bill indicate. The result has been catastrophic. The Government is now faced with dropping another Law Commission Bill or accepting an amendment – pension splitting – which is strongly opposed by the Treasury.

On the day the Cabinet Committee was deciding the fate of the Family Law Bill, Tony Blair, Paul Boateng and Lord Irvine met to decide tactics. A Labour abstention would make a government defeat more likely and could have the potential to affect the timing of the next general election.

There could not be a clearer indication of the importance of legal Bills in the political arena.

Aware of this, Labour has introduced a more professional approach to legal policy-making. Policy is processed, costed and inspected centrally by the leader's office. This is not always the case in the Conservative Party and is why it is in such a policy muddle in this area.

In every day matters, the lead on all Labour's legal policy falls to Lord Irvine, recently confirmed as Lord Chancellor-to-be. Irvine is sharp, with his own views forcefully put on the floor of the House. By nature, however, he is not as open to consultation with parliamentary devices such as probing amendments, and he tends to decide his own line.

Both he and his junior Shadow Minister in the Commons, Paul Boateng, have busy practices. However, Boateng and his staff are more open to consultation and more ready to exploit the political machine.

The profession does criticise Boateng for playing the populist card and publically criticising it, but it is surprising a politician should do otherwise. And, to be fair, blame must also lie with the profession for failing to change public perceptions about it.

But for the lynch-pin in Labour's legal policy-making process, look no further than Tony Blair's office and his policy staff.

Any pronouncement made by either Lord Irvine or Boateng must first go through the leader's office, initially via a single policy officer. This is the case with all Shadow Cabinet policy documents, particularly those with cost implications.

Since Lord Irvine enjoys direct access to Tony Blair, more latitude may be given to his proposals than to those of many fellow Shadow Cabinet colleagues. This process eliminates one of the main constraints which the current Lord Chancellor labours under. Lord Mackay does not enjoy the same access to the centre of political power or even to his own backbenchers. This is true in physical terms since he is by convention unable to enter the Tory inner sanctum in Westminster, the Smoking Room.

Difficulty over physical access was also a problem for Edward Garnier MP, Parliamentary Private Secretary (PPS) to the Attorney General, Sir Nicholas Lyell. Garnier conducted a successful damage limitation campaign over the Scott Report. And his success was achieved despite the fact that Lyell does not have a Commons office with Cabinet members behind the Speaker's Chair but many yards away off the Central Lobby. This was a significant handicap to keeping up with the latest gossip and keeping in with the right people.

Lacking a direct line to the PM and shut off in the Lords, the Lord Chancellor is significantly worse off. His new PPS Peter Luff MP will find it doubly difficult to conduct an effective PR campaign among backbenchers for his new boss.

Lord Irvine's access to Tony Blair remains a key element in Labour's legal policy-making process. Hence the decision to ditch the Ministry of Justice proposal at his instigation.

There are other links in the chain. One of these is the Society of Labour Lawyers. The society's membership is thriving and it can field expert lawyers to provide background papers and drafted amendments. It also boasts a small number of members who are close to Blair.

Walworth Road and the new monster media operations in Millbank also have peripheral influence. A desk officer at the party HQ writes up Labour legal policy but has little if any input into the contents.

This leeching of influence away from Walworth Road is a generally accepted fact, illustrated by the recent departure of Roland Wales, who had a run-in with Gordon Brown over economic policy.

While many in the Labour Party bemoan the increasing centralisation of policy making, it is paying dividends in keeping a disciplined approach to legislation and policy making.

Of course, there are other legislative areas of interest to the profession. What are Labour's plans for the profession if it forms the next government? Many point to Boateng's Access to Justice document for an answer. Access to Justice was his personal creation, although it went through the full policy process. It raises a number of interesting ideas for the future of the profession and it is set in stone.

But while Boateng may take a fairly adversarial approach to lawyers in public, the tone in private is a little softer. In any case, a general election win for Labour may find him in government not as legal spokesman but enjoying an even more prominent position elsewhere on the front bench.