The Houses of Parliament © Getty Images
Public policy in England seems to have a rather illiberal tone at the moment. (And this post deliberately refers to England as, since devolution, it is increasingly hard to generalise about all the national governments in the UK.) Almost every day comes some new announcement about how the government wants to have more power at the expense of its citizens. Is England getting more illiberal? If so, how has this come about? And will any such illiberal trend continue?
First, the evidence of illiberalism. At its most stark, it is about life and death. In the last few weeks alone the prime minister has called for the army to be put above the law and for the law to be changed so as to make it easier for the police to shoot people. It would appear that David Cameron sees no role for the law in restraining those who can exercise lethal force on behalf of the state.
UK home secretary Theresa May © Getty Images
The UK government on Wednesday published a draft Investigatory Powers Bill for public and parliamentary consideration. It was a significant move in many ways.
The intention is that the draft Bill will be the basis of consultation, with a revised Bill being published in 2016. This revised Bill will need to be enacted by the end of next year, as the current Data Retention and Investigatory Powers Act expires on 31 December 2016 and one section of it has been quashed by the High Court as from March 2016.
Publication is therefore the start of what may be a year-long legislative process. On the face of it, the government intends to take the legislative process seriously. The Bill has been published with extensive explanatory materials, fact sheets and impact assessments. The page count of those documents is higher than that of the bill itself — the government wishes to give the impression this process is to be done properly and thoroughly. Read more
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The Queen’s Speech last week had one notable omission: the firm commitment to a new Bill within months to repeal the Human Rights Act 1998 and for it to be replaced with a “British Bill of Rights”. Read more
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Imagine a politician making a clear and specific promise before an election. Imagine then, if you can, that politician breaking the promise when he or she is elected to office.
Is this the sort of situation where a voter should be able to go to court and obtain some legal remedy?
Usually when somebody lets you down over something important you can threaten to get the law involved. For example, if a debtor does not pay what is due, or if another driver does not take proper care and attention, you can sue the culprit.
And your rights to legal redress are not just for straightforward disputes: a well-brought legal action can halt an infrastructure project worth billions of pounds if the developer has put a foot wrong, and a judge in chancery will be perfectly happy on a Tuesday afternoon to rule that there is a worldwide complex trust preventing some absconder from misusing a victim’s assets. Where there is blame, there is usually a clever lawyer somewhere who can formulate for you a claim.
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The current difficulties of the UK government in setting up an inquiry into historic child abuse raise a more general point: there seems to be an increasing — but unfortunate — reliance on “inquiries” in British politics.
The pattern is familiar: a dreadful state of affairs comes to light, something must be done, lessons must be learned, and it must never happen again.
Responsibility for determining the thing to be done, working out the lessons to be learned, and ensuring that the “it” never happens again is then handed to a specially appointed inquiry. Such an inquiry will usually be “independent” and not connected to the institutions of the state which have presumably allowed the bad thing to happen in the first place.
And this approach suits a lot of people.
As there is the appearance of immediate action, those aggrieved at the bad thing that has happened can be satisfied that “progress is being made” and those in the media who want something to report and comment on have all they need. Read more
Lady Justice does not always have her eyes covered: for example, contrary to popular belief, she does not wear a blindfold on top of the Old Bailey.
Sometimes she is depicted by artists as being blindfolded, and sometimes she is not. (Perhaps wisely, those statues and paintings which have Lady Justice blindfolded tend to have her with the sword safely lowered; and whether someone brandishing a sword whilst wearing a blindfold is an appropriate image for any system of justice is a matter of opinion.) But there is no consensus among painters and sculptors as to whether Lady Justice should be wearing a blindfold or not.
There is similar inconsistency in what parts of the justice system we are allowed to see, as members of the public or even as jurors or parties to a claim or prosecution. Some parts of our legal process are open, whilst other aspects are hidden from our view. This is because there is no general principle of open justice in the jurisdiction of England and Wales: it is often a game of pass the blindfold as any court case continues. Read more
Chris Grayling, the justice secretary and lord chancellor, is attacking judicial review. He has derided it in the Daily Mail, and the department he heads, the ministry of justice, has issued a consultation paper on further “reform”.
It is worth considering what point, if any, is served by judicial review. This will help explain why the government’s proposals to narrow the rights of individuals and representative groups to bring judicial reviews should be of general concern. Read more