Tension is building, says John Ludlow, as the constitutional affairs select committee nears the end of its inquiry into the carter reforms and it is concession time on the legal services bill
The issue of legal aid reform has shifted a gear or two in the last few weeks, and there is now the undeniable whiff of tension in the Commons air. On 11 January we had Department for Constitutional Affairs minister Vera Baird robustly, if unconvincingly, defending the Carter proposals in a heated and packed debate in Westminster Hall. While this was a spirited performance, it was one almost certainly prompted by the mutterings and disquiet on the government backbenches rather than a general desire to appease the House.
Just how many Labour MPs have concerns about the proposals can be gleaned from a Law Society-drafted early day motion which was tabled the day before Parliament rose for the Christmas recess. In the 15 or so sitting days since then, the motion has attracted 118 signatures, of which 57 ? almost half ? are members of the governing party. This will not have gone unnoticed by ministers.
We have also had the constitutional affairs select committee taking oral evidence in its protracted Carter inquiry. The first to face questions was Lord Carter himself, closely followed by the Law Society, the Bar Council and a group of senior judges (see  Gazette, 25 January, 1). There are still several sessions to go, with closing evidence expected from the Lord Chancellor on 20 February, but it is clear even at this stage that members of the committee have a healthy scepticism about many of the government?s assumptions. The report should be out in early March and will make interesting reading.
The pace is also hotting up on the legislation front. The Bill to abolish jury trials in fraud cases may have passed the Commons hurdle, but only by a majority of 35, which suggests that it will have a rough ride in the upper house. The Mental Health Bill has completed its committee stage in the Lords, but only after the government suffered a defeat on an amendment to ensure that people who have full decision-making ability, and who have not committed any crime, cannot be forced to have treatment imposed on them. This is an important change which the government is bound to try to overturn when the Bill gets to the Commons.
The return of Parliament after the recess has also seen the publication of two new government measures, the Serious Crime Bill (which sets its sights on organised criminals) and the UK Borders Bill. Interestingly, the latter will be subject to a new Commons procedure that allows outside evidence to be submitted and considered during the Commons committee stage. Initially proposed by the Commons modernisation committee, it remains to be seen how this works in practice and whether scrutiny (and drafting) is genuinely improved as a result.
The Legal Services Bill is moving at a relatively sedate pace but is already more than half way through its committee stage in the Lords, where it was first introduced. Peers have recently completed detailed discussion on the establishment of the legal services board and the regulation of front-line regulators, and have begun to look at the thorny subject of alternative business structures.
For the most part, the minister, Baroness Ashton, has been accommodating. For example, early in the proceedings she accepted an amendment to ensure that the Lord Chancellor and not any secretary of state should have governmental responsibilities in relation to the regulation of legal services. This might seem trivial, but in fact it is a vital change that would prevent responsibility being transferred to a minister whose other departmental responsibilities caused him to give less weight, for example, to the importance of maintaining an independent, strong, diverse and effective legal profession.
Elsewhere, Baroness Ashton has made it clear that she agrees ?in principle? with certain amendments, but has doubts about the wording proposed. This was her response, for example, to an amendment making it explicitly clear that the board should be a supervisory regulator, which can exercise its powers only where the approved regulators are clearly failing, and to another limiting its power to fine.
The minister has also been sympathetic to an amendment to ensure that any impact on access to justice is fully taken into account when decisions on licensing prospective alternative business structures are taken. Here she promised to ?go away and reflect on any further safeguards that may be provided?, and to come back to the House at report stage.
Indeed, report stage in the Lords is where most of the important changes to a Bill take place. It is here that government concessions are usually made and also where rebel amendments are most successful. Although the minister?s responses were highly encouraging in many cases, she will have to return at this later stage with some concrete counter-proposals if the government is to avoid defeat in a number of vital areas.
John Ludlow is head of the Law Society?s parliamentary unit