Chapter Updates

Chapter 1: The British Constitution, law reform and the parliamentary legislative process

Constitution/law reform: is the ‘rule of law’ under attack?

The ‘rule of law’ is a strand of constitutional theory that expresses the principle of equality before the law and places a check on arbitrary power (see pp8,9 and 14 of the textbook). It acts as a constitutional safeguard for the rights of citizens when they are brought before the courts, ensuring that procedures are conducted according to the law. The 19th century theorist AV Dicey stated that the ‘rule of law’ meant ‘in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power…Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else.’

Since 1997 the Blair Labour governments have been subject to a great deal of criticism for undermining the ‘rule of law’ principle in their approach to tackling terrorism. However, a new government threat to the ‘rule of law’ has been identified in a letter to the Times (18/12/06). The Home Office has published a consultation paper, ‘Quashing Convictions’ (see www.homeoffice.gov.uk/documents/cons-2006-quashing-convictions2) which argues that the Court of Appeal should be able to uphold convictions even though there were procedural irregularities in the trial process. As Home Secretary John Reid sets out in his foreword to the paper, ‘it may come as a surprise to some that the existing law (Criminal Appeal Act 1968, as amended) empowers the Court of Appeal to quash a conviction on purely procedural grounds even when the judges of that Court have no doubt the appellant is guilty. Such outcomes are damaging to public confidence in the criminal justice system. They may also put the public at further risk of crime.’ This view is countered by the letter to the Times, which argues that the government’s proposal ‘constitutes a profound threat to the rule of law’. It continues by alluding to the ‘miscarriages of justice’ of the 1980s (see ‘Birmingham Six’ example in the textbook at p196) as the sorts of situation that ‘can occur when proper safeguards against malpractice are lacking’. The letter also points out that as Court of Appeal judges can order retrials, where appropriate, the suggested change is ‘not only misconceived, but also unnecessary’. The letter is signed by five senior academics (from the universities of Cambridge, Leeds, London and Westminster), the directors of three legal pressure groups (Amnesty International, Justice and Liberty) and representatives of professional bodies, including the President of the Law Society.

The government has further provoked its critics by emphasizing that the consultation is not about whether the law should be changed, but rather on how that change should take effect. This has been perceived as an attempt to stifle the debate.

Parliamentary legislative process/law reform: the Queen’s Speech to Parliament (November 2006)

Lasting just eight minutes, and accompanied by the usual pomp and ceremony, the Queen’s Speech opened the new parliamentary session for 2006-2007 by outlining the government’s (and Tony Blair’s tenth and last) legislative programme for the year ahead (see p12 of the textbook). This consists of 29 Bills. The legislative programme generated significant political interest, chiefly because of its proposals to replace the Child Support Agency (Child Support Bill), tackle climate change (Climate Change Bill) and make further attempts at tackling anti-social behaviour (Criminal Justice Bill); and also because of the stormy debate that followed the Queen’s Speech, including Tony Blair’s apparent reference to Gordon Brown as the ‘big clunking fist’ who would, by the time of the next legislative programme, be knocking out the ‘flyweight’ leader of the Opposition, David Cameron. Coverage of the occasion can be found across the newspapers on 16/11/06. However, the Bills most likely to affect your studies – if enacted - in the next year are:

• Criminal Justice Bill (see updates for Chapter 14 on sentencing)
• Fraud (Trials Without Jury) Bill (see updates for Chapter 9 and p170 of the textbook on s43 of the Criminal Justice Act 2003 on removing trial by jury from serious fraud cases)
• Legal Services Bill (see updates for Chapter 10 and pp206, 209, 210, 211, 212 of the textbook on changes to the legal services marketplace and the proposed system for complaints against legal practitioners)
• Tribunals, Courts and Enforcement Bill (see updates for Chapter 7 and pp132-133 of the textbook, with regard to further attempts to create one unified framework for tribunals)

You can follow the progress of any of these Bills via www.publications.parliament.uk/pa/bills.htm and there is a link to all the Bills in the Queen’s Speech from this site, some of which, at the time of writing (January 2007), were still in preparation.

Parliamentary legislative process/law reform: which laws should be repealed?

Radio 4’s early morning (6am-9am) Today programme, at 92.4-94.6FM (www.bbc.co.uk/radio4), regularly contains items of interest to law students – in the past it has asked its listeners to suggest proposals for new laws – and the seasonal 2006 request has been for listeners to vote on which laws they think should be repealed (ie, got rid of or in Today’s terms, ‘tossed into the dustbin of history’), based on representations made by various public figures. The long-list included:

• Dangerous Dogs Act 1991 (a much criticised ‘knee-jerk’ piece of legislation, passed far too quickly, which sought to respond to a spate of dog attacks on humans but was so badly drafted it was difficult to enforce justly in practice)
• Serious Organised Crime and Police Act 2005 (criticised for its enabling powers allowing for a ban on demonstrations in Parliament Square, see the Haw case on p48 of the textbook; and also for extending police powers of arrest, a reform discussed in the textbook at pp114-115)
• Human Rights Act 1998 (an Act that has proved very politically controversial, largely as a result of some of the cases brought under the Act and some of the judicial decisions that have appeared to place individual rights above the broader public interest, prompting the Labour government that introduced it to consider amending the legislation and the Conservative opposition to suggest repealing it altogether – see coverage in the textbook at pp8 and 29-34)
• European Communities Act 1972 (opposed by those who see an acceptance of the primacy of EC law, and an extension of its areas of influence, as undermining UK parliamentary sovereignty – see discussion in the textbook at pp102-105)
• Hunting Act 2004 (the Act banning fox-hunting, which has survived constitutional and human rights challenges, see textbook coverage at pp15-17, but critics say is drafted in such a way that it fails in its attempt to secure animal welfare; indeed, the critic who suggested this repeal was a former Director of the League Against Cruel Sports, a body that had pushed for such a ban)
• Act of Settlement 1701 (this old constitutional Act maintains a degree of discrimination against Catholics in the UK that was prevalent at the time of its writing, but now seems out-dated and inappropriate; it prevents any Monarch or heir to the throne from marrying a Catholic)
• Act of Union 1707 (Scottish nationalists argue that this Act, which led to the union between England and Scotland and legislation from Parliament in Westminster, should be abandoned in favour of the restoration of full sovereignty to the respective nations – it is a matter of debate whether this call for full Scottish independence has been enhanced or limited by the recent devolution of some legislative and tax-varying powers to Scotland)
• Identity Cards Act 2006 (an Act criticised on policy grounds by those who oppose the need for ID cards on grounds of cost, both in terms of government spending and direct cost to members of the public; of technology, on the problems associated with biometric and related security systems; and on utility, based on the view that ID cards will not add to the safety and security of the nation)
• Higher Education Act 2004 (this Act reformed funding arrangements for students in higher education, allowing universities to charge a variable or ‘top-up’ fee of up to £3000 and amending the repayment methods available to students – groups such as the National Union of Students opposed these changes, arguing that they discouraged those from poor backgrounds from attending university and forced students into serious debt)
• Abortion Act 1967 (the subject-matter of this Act inevitably divides opinion on moral, political and legal grounds and it was famously introduced as a Private Member’s Bill: it allows for abortions to be legally performed provided that certain safeguards are met – eg, that it is carried out by a registered medical practitioner: see the Royal College of Nursing case on this point in the textbook at p58 – though critics point out that it has led to abortion ‘on demand’ in practice)
• Health Act 2006 (this legislation creates a ban on smoking in public places, set to come into effect on 1 July 2007 and following similar legislation in Scotland and the Irish Republic: the Act is either perceived as a major step forward for public health or an example of ‘nanny-state’ government encroaching on the civil liberties of citizens)
• Misuse of Drugs Act 1971 (this Act includes the main offences relating to drugs, including possession, production and supply, and classifies drugs according to how dangerous they are perceived to be – the Science Select Committee of the House of Commons has recently criticised the accuracy of the Act’s classification system, with alcohol seen as an equivalent harm to some of the prohibited substances)

From these suggestions a short-list was created by a mixed political panel assembled by the Today programme and from listeners’ suggestions:

• Dangerous Dogs Act
• Serious Organised Crime and Police Act
• Human Rights Act
• European Communities Act
• Hunting Act
• Act of Settlement

The winner, the Act believed by Today listeners to be most deserving of repeal, was announced on New Years Day 2007 to be the Hunting Act 2004, by a strong margin ahead of the second-placed European Communities Act 1972.