Constitutional Theory Goes Bang

... but I'm too busy to write about anything myself about the Legislative and Regulatory Reform Bill. Suffice it to say that the more I read it the more it seems to be one massive Henry VIII clause, with the real risk, in my view, that post Jackson it may be deemed to be primary legislation, which takes it largely out of the oversight of judicial review. All hail dirigisme -but most states which run things that way have a differently constituted and more fractured political establishment. If you listen carefully you can hear Haselrig, Pym, Hampden, Holles, and Strode spinning in their graves.

1(1) A Minister of the Crown may by order make provision for either or both of the following purposes—
(a) reforming legislation;
(b) implementing recommendations of any one or more of the United Kingdom Law Commissions, with or without changes.

[...]

2 (1) An order under section 1 may for either purpose specified in subsection (1) of that section make provision amending, repealing or replacing any legislation.
(2) Provision under subsection (1) may amend, repeal or replace legislation in any way that an Act might, and in particular may amend, repeal or replace legislation so as to
(a) confer functions on any person (including functions of legislating or functions relating to the charging of fees);
(b) modify the functions conferred on any person by legislation;
(c) transfer, or provide for the transfer or delegation of, the functions conferred on any person by legislation
(3) An order under section 1 may for the purpose specified in subsection (1)(b) of that section also make—
(a) provision amending or abolishing any rule of law;
(b) provision codifying rules of law.

It's true, of course, that secondary legislation by ministerial order has a long history, and has its place in settling the administrative machinery required to make the law work. But, at least since 1689, it has been settled (in England and then in the various iterations of the UK: I know not about Scotland before) that the power to do so arises only under the residuary, and these days fairly limited prerogative powers of the Crown (which in this context means the powers exercised by HM on the Advice of her ministers, as opposed to the very small number of personal powers exercised after she has taken advice from those people she considers appropriate (use of capitals deliberate) which are really used only if everything has gone a bit wrong), or, more usually, under powers specifically given under an Act. Almost any Act of Parliament states something along the lines of "the minister responsible may make orders providing for regulations under this section", except Criminal Law acts, and even those do sometimes. Thus the minutiae of administrivia are taken away from the body of the Act. But such orders are restricted to use for the limited purpose laid down in the section, and to the general principles of primary law -natural justice, legitimate expectations, etc etc-, and their use can be judicially reviewed, these days having regard to the HRA. Even then, such regulations have a tendency to be authoritarian and prescriptive in nature, which is in part a product of their purpose but in part also a product of the limited amount of review they receive. And the whole point of the exercise is to avoid spending time having the measures argued about in the Commons: that, for good purpose or ill -I happily concede that trying to use the time of the various parts of the state efficiently is a perfectly good purpose-, is the entire reason for arranging matters this way.

Acts of Parliament can themselves now be Declared in breach of the ECHR under the HRA, but that is a different, and far more difficult, procedure (and as a matter of principle does not invalidate them, though the practical consequences are in essence to that effect). By contrast to the established kind of Regulation, this is a general power to legislate in the manner of an Act of Parliament, including amendment of existing Acts by freestanding Regulations, and amounts in substance to a huge expansion of the Crown prerogative. OK, so at least ministers today, unlike those of the 17th century, have a degree of democratic accountability. But part of the reason for doing things as we do now is to guard against elective dictatorship.

It isn't actually the first time this government have allowed ministers to amend primary legislation by regulation. It was first used in the HRA itself, and more worryingly, in the Civil Contingencies Act 2004. But even then it's limited to matters arising under those Acts. What it has a great deal in common with is the power of the European Commission to issue Directives - but then, I consider that one of the main problems with the current legislative machinery of the EU.

Owen Dixon wrote in "The Law and Constitution" (1935) 51 LQR 590, 596 that it "is of the essence of supremacy of the law that the courts shall disregard as unauthorised and void the acts of any organ of government, whether legislative or administrative, which exceed the limits of the power that organ derives from the law." That principle ceases to have much force when there are effectively no limits on the power in question.

Chicken Yoghurt and Nosemonkey (who has a few other posts on the subject) have made a start on the problems. In what I find an utterly bizarre move Clifford Chance, of all people, have a very good paper on the subject (.pdf)

Meanwhile Prem Sikka has a rather ill-informed and confused articles about trusts law, offshoring, and the constitutional position of the CDTs in the Guardian. No one appears to have pointed out to him the existence of the recent flood money-laundering legislation in the UK, copied verbatim in most off-shore jurisdictions including the one in which I sit. Or the draconian powers and activities of the FSA, and its offshore equivalents. Or the large pile of non-chargeable work involving review of relevant procedures sitting on my desk. Perhaps I'm deluded and it's not there... I shall take the afternoon off.

Extraordinary Rendition

Craig Murray has a few new posts on the extraordinary rendition affair: (1), (2), (3). This story has not gone away yet...

Criminal Justice

.. and finally, before I actually do some work, this, via Psychonomy on an email list: "Families to Speak Out In Court:

Relatives of murder and manslaughter victims are to be given the right to be represented in court as part of a pilot project in five areas of the UK.

[...]

From April, the scheme will see a "victim's advocate", a family member for example, making a statement in murder and manslaughter trials.

I really don't think this is a great idea. Criminal justice is supposed, in my view, to be about actions being judged and condemned by the state. It is by design that the crown prosecutes, not usually someone acting for the victim or their family, because it is thought right to put some distance between the judgment and punishment of the accused, where society says "this is wrong" and the emotional involvement of those who have suffered, as part of the checks designed to ensure a fair trial for someone potentially facing a serious penal sentence. And what if the victim has no one to speak for them, as someone on the list pointed out? Does the accused get an easier ride? Criminal law is the assertion of the authority of the state and of the society that state represents, not the retribution of the injured: the latter is what the civil courts are for. The distinction between tort and crime evolved for a reason.