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This page provides occasional items, linked to the original articles, as we attempt to keep up with the rapidly changing situation on civil liberties.
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2002 - 2004

1st Jan to 9th Sept 2005

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Opposing the Abolition of Parliamentary Scrutiny Bill

Posted by James Hammerton @ 8:25 pm on 12 March, 2006.
Categories democracy and the rule of law.
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A blog called Nether-World has produced a useful list of articles from both the blogs and media covering the Legislative and Regulatory Reform Bill, and it looks like there’s more than one campaign against it getting under way:

Numerous blogs have been covering this legislation, and a good list is provided at Netherworld above. Readers may also be interested in the Liberty Central site, which is covering the Bill plus many other libery related issues.

Roundup of recent civil liberties related articles

Posted by James Hammerton @ 1:18 am on 11 March, 2006.
Categories privacy and surveillance, political liberties, democracy and the rule of law.
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Here’s a roundup of some recent articles, both from blogs and the media, concerning civil liberties:

The Online Library of Liberty

This site’s aim is “…to encourage study of the ideal of a society of free and responsible individuals”. They are currently advertising the online publication of the complete works of John Stuart Mill.

From their “About the Online Library of Liberty” page:

The purpose of the Online Library of Liberty is to take advantage of the opportunities provided by the internet in the pursuit of Liberty Fund’s educational activities.

Liberty Fund’s Online Library of Liberty makes available at no charge to the public hundreds of full-length classic texts which have contributed to our understanding of the nature of individual liberty, limited and constitutional government, and the free market. The intended audience for this unique collection are scholars, faculty, students, and other members of the public. Access to the collection is completely open and requires no logging on, password, or payment of any kind.

Media Coverage of the Legislative and Regulatory Reform Bill

Posted by James Hammerton @ 8:43 pm on 9 March, 2006.
Categories democracy and the rule of law.
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Although it hasn’t been making the headlines there have been a few articles in the mainstream media about the Abolition of Parliamentary Scrutiny Legislative and Regulatory Reform Bill. Here’s a roundup of those that caught my attention:

  • The Times has had two commentary articles on the bill, one by Lib Dem MP David Howarth and another by commentator Daniel Finkelstein. Howarth describes the bill as the ‘Abolition of Parliament Bill’, and comments soundly that:

    What does this argument, used often by the minister during last week’s debate, amount to? An admission that we are now passing so many new laws, so quickly, and so many of them are sloppy, that we don’t have time to debate them properly or reform them when they go wrong. Parliament is drowning in a sea of legislation. Instead of calling a halt to this, the Government is seeking a way of moving ever faster, adding yet more laws, this time with even less debate.

  • The Guardian has a leader column and its sister Sunday paper, the Observer, has an article by Henry Porter discussing the bill. The leader article suggests that MPs should demand a veto on regulations passed under the bill and that such legislation should be restricted to “non-controversial” measures. Unfortunately this proposal misses a key point — without adequate scrutiny one might not realise that a “controversial” measure is contained in a statutory instrument, plus the government could argue that MPs already have a veto — they can vote against a parliamentary order. The Guardian’s proposals will do nothing to address the fundamental problem which is the lack of scrutiny of such orders. Henry Porter’s article warns that Britain is heading towards a totalitarian state, and has some scathing comments about the government’s responses to the concerns raised by MPs during the debates on the bill.
  • The Sunday Herald has an article by Alistair Carmichael, where he points out that the Scottish Parliament could be abolished under the bill, and noting that the bill is in line with the government’s tendency to marginalise Parliamentary debate whether at Westminster or in the devolved assemblies.
  • Bill Monteith, writing in the Scotsman, points out that voters will have even more reason to be apathetic (should that be antipathetic) should Parliament be sidelined by the Bill. At one point, he comments:

    As if the general duplicity and untrustworthiness of political charlatans is not enough to put voters off, we now have a very low-key Bill going through Parliament that is guaranteed to devalue the effectiveness of our parliaments and therefore the value in voting at all.

    I quite agree.

Blair’s latest enabling bill: turning Parliament into a rubber stamp

Posted by James Hammerton @ 8:31 pm on 5 March, 2006.
Categories democracy and the rule of law.
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In my previous two articles, I provided an overview of the Abolition of Parliamentary Scrutiny Legislative and Regulatory Reform Bill and considered the scope of the Parliamentary orders which can be issued under the bill. I now consider the procedure for passing these orders and the implications they have for the role of Parliament and its ability to scrutinise legislation.

In order to understand the likely impact of the bill it is worth considering how Acts of Parliament are currently created. As things are now, once the government publishes a new Bill, the odds are stacked in its favour. The government dominates the House of Commons, and thus dominates the committees and can get its way, most of the time, on procedural matters. Even getting opposing amendments tabled and voted upon requires a head of steam to be built up, and getting them properly debated, let alone passed, usually requires the governing party to be split and/or to have a small majority.

The government also pushes through so much legislation each year it is impossible for an MP to keep up with it all. Thus MPs will tend to specialise on a few bills (if they care), and otherwise act as lobby fodder — they won’t make decisions independent of their party whips unless there’s an extremely controversial measure that splits one or more of the parties or it an area they care about.

The end result is that much legislation ends up guillotined with amendments falling by the wayside, and much of the original bill having been undebated and possibly unread by most MPs.

Then in the House of Lords, the government has less of an advantage — even though Lords are appointed, they are appointed for life and can thus be independent. Plus currently the government do not have a majority of peers. However the Lords can be overruled by the Parliament Act and will tend not to oppose manifesto commitments outright. So whilst they sometimes manage to propose some modest improvements to a bill, and sometimes insist on those, the government can override them if determined or will accept improvements, knowing it mostly got its way.

To stop or even just merely modify a bill requires a head of steam to be built up, which requires both time and detailed scrutiny of the bill (to deal with the obfuscation and lies governments will come out with and to devise effective amendments and ensure they get voted on). I.e. the system is already badly flawed and could do with more power returning to Parliament at the expense of the executive.

Nevertheless it does take several months for legislation to pass through this process, it does get scrutinised by Parliamentary committees and debated several times by both MPs and peers and the government is forced to make it case repeatedly. The process, despite its flaws, does enable improvement of government legislation and occasional rejection of legislation proposed by the government.

However, with this bill, the government are proposing a general power to legislate via statutory instrument (they’ve already got such powers in specific areas due to earlier legislation). With a statutory instrument, each House gets only 1 vote (and possibly not even that if the negative resolution procedure is used), there is no opportunity to put forward amendments and the time for considering the draft order is strictly limited, in this case to 40 days or 60 days. This means there will be precious little scrutiny and very little chance to merely improve legislation let alone to oppose it outright. Even if the super-affirmative procedure is used, amendments aren’t tabled — the government can simply put down a revised order and thus decides what representations shall be listened to and how they should be catered for.

At best, the government decides whether to revise an order and what revisions to make, not Parliament, and then only if the super-affirmative procedure is being used. Parliament can either say yes or no, and the government might give Parliament a second chance to say yes or no to new proposals if it feels like it.

The end result if this bill becomes law is clear. The government will tie MPs up with some unimportant Acts of Parliament whilst pushing the meat of what it wants to do via statutory instruments.

Parliament will become even more of a rubber-stamp than now, easily manipulated by the government, whilst anyone wishing to oppose the statutory instruments(SIs) will have their work cut out because they’ll only get a couple of months at most from the publication of the SI to getting the SI stopped, and that’s assuming they hear about it.

Already thousands of SIs are passed each year with very low visibility and scrutiny (it’s rare for an SI to even be mentioned in any but the most obscure parts of the media).

This government intends to enable just about any legislation to be passed in similar circumstances and in doing so will nominate the resolution procedure to use (negative, affirmative or super affirmative) in each case. Given its ability to manipulate Parliament, this will mean determining which procedure is used in the vast bulk of cases.

It will be rule by decree with a Parliamentary facade.

The scope of orders issued under Blair’s latest enabling bill

Posted by James Hammerton @ 8:09 pm on .
Categories democracy and the rule of law.
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Following on from my earlier overview of the Abolition of Parliamentary Scrutiny Bill Legislative and Regulatory Reform Bill, I consider here the scope of the orders that can be issued under the bill.

Essentially, the bill provides a fast-track procedure for passing almost any legislation.The preconditions listed in section 3 are all down to the Minister’s judgement and therefore what they claim to be the case. For this reason, it seems to me that they will not stop a Minister making whatever provision he deems fit to make via this process.

The other non-procedural restrictions are more meaty, but they only restrict the powers to impose or raise taxes, the sentences one can place on newly created offences and the ability to legislate on devolved matters or to create new powers of forced entry. They do not, for example, prevent the Scotland Act being rewritten (thus redefining what matters are devolved!) or changes being made to the Human Rights Act. Even with the restrictions on powers of forced entry, apparently the extending of such powers is allowed if it is done for similar purposes as the original powers were brought in for — I predict the use of highly creative interpretations of the word “similar” here.

As far as I can tell therefore, none of the following would be prohibited by the non-procedural restrictions or anything else in the Bill:

  • altering the procedure used under this bill so that e.g. only the negative resolution procedure is used.
  • “reforming” section 1 of the Terrorism Act 2000 to give a new definition of terrorism.
  • “reforming” the Civil Contingencies Act to make it easier to invoke and removing its protections from modification for the Human Rights Act and the Civil Contingencies Act itself.
  • “reforming” the Human Rights Act.
  • “reforming” the Parliament Acts which set out the procedure by which the House of Commons can override the will of the House of Lords.
  • conferring powers on Ministers to appoint and sack judges at will.
  • “reforming” the Prevention of Terrorism Act 2005 to allow the Home Secretary to impose control orders on his own authority, without the courts intervening, as was originally intended when the bill was first published.
  • removing awkward amendments forced on the government during the passage of any contentious bills.
  • creating an offence of displeasing the government, carrying a sentence of up to 2 years in jail.
  • rewriting the laws relating to just about any matter.

Clearly with such a broad scope for legislating via these orders, it is crucial for there to be adequate Parliamentary scrutiny of them, which leads us on to the procedure by which such procedures are pushed through Parliament, which is the topic of the next article in this series.

Overview of Blair’s latest enabling bill

Posted by James Hammerton @ 7:52 pm on .
Categories democracy and the rule of law.
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This is the first of three articles on the Abolition of Parliamentary Scrutiny Bill Legislative and Regulatory Reform Bill currently going through the British Parliament, the second and third articles will look at the implications of the bill covering the scope of the bill and its likely impact on the legislative process in the UK. This article provides an overview of the bill which you can see online here.

Part 1 of the Bill gives Ministers of the Crown wide ranging powers to legislate via parliamentary order. Indeed they seem to get the power to legislate via parliamentary order subject only to the following restrictions:

  • the Minister must consider that the following conditions are satisfied (section 3) [I’m excluding the stuff about “restating” legislation as this is relatively unimportant, as far as I can tell]:
    • the policy objective intended to be secured could not be satisfactorily secured by non-legislative means,
    • the effect of the provision is proportionate to the policy object,
    • the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it
    • the provision does not remove any necessary protection,
    • the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.
  • they cannot impose new taxes or raise taxes (section 5).
  • they cannot create criminal offences that carry more than 2 years in prison as punishment or raise the tariffs on existing offences above that limit (section 6)
  • they cannot create new powers of forcible entry or compel the giving of evidence — except when extending a power for purposes similar to those which the power applied before the order was made or when giving effect to recommendations of a law commission (section 7).
  • they cannot legislate in areas delegated to the devolved assemblies (sections 8 and 9, but the wording seems to allow some exceptions)
  • the order must be made by statutory instrument (section 10) and the Minister has consulted those he deems appropriate — it seems to me that the only people he might have to consult are the Welsh assembly and the law commissions, and then only in certain circumstances (section 11).
  • the order must be made in accordance with either the negative resolution procedure, affirmative resolution procedure of the super affirmative resolution procedure (section 10(c)).
  • the Minister can nominate which of the above procedures is used (section 13), though either of the Houses of Parliament can insist on the affirmative or super-affirmative procedure if they pass a resolution to that effect within 21 days of the order being laid before Parliament. How likely is it the government will table such a resolution themselves? How likely is it the government will try to use parliamentary procedure to prevent such a resolution being tabled?
  • the negative resolution procedure requires a resolution being passed in either House of Parliament to stop the order being made (section 14) and such a resolution must be passed within 40 days of the draft order being placed before Parliament.
  • the affirmative resolution procedure requires a resolution being passed by both Houses of Parliament to approve the order (section 15), within 40 days of the draft order being placed before parliament.
  • the super-affirmative resolution procedure requires a resolution being passed approving the order in both Houses within 60 days of the draft order being put before Parliament. (section 16) The Minister can listen to representations, recommendations of House Committees and any resolutions passed regarding the draft order and put forward a modified draft of the order, which then needs approval by both House of Parliament. Alternatively the unmodified order can be made on the basis of the approval of the original draft.

Why sunset clauses are useless

Posted by James Hammerton @ 7:59 pm on 15 February, 2006.
Categories democracy and the rule of law.
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The Prevention of Terrorism Act 1973 was continually renewed until it was replaced by the Terrorism Act 2000.

Now, the Prevention of Terrorism Act 2005 has been renewed “on the nod” in a poorly attended 90 minute debate.

Do you remember the Parliamentary “ping pong” which the passage of the Prevention of Terrorism Act 2005 entailed about this time last year? Debates into the late hours, much gnashing of teeth and cries of “Habeas Corpus” and “European Convention on Human Rights” etc. and “hundreds” of people who pose an “Immediate Terrorist Threat”?

There was a promise to review the legislation in the early part of 2006, the so called “sunset clause” concession by the Government. Well, the “sunset clause” is no more, it has been passed without a vote

The motion to accept the continuation of this dreadful legislation has been passed, “on the nod” , without a vote, by the House of Commons, after a mere 90 minites of debate, attended, at one point by only 13 Members of Parliament.(Some typos have been corrected in this quotation)

It is worth reading the whole thing.

Meanwhile, the British government wants to rule by decree

Posted by James Hammerton @ 2:02 am on 11 February, 2006.
Categories democracy and the rule of law.
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The government recently published the Legislative and Regulatory Reform Bill.

This bill gives Ministers the power to alter any Act of Parliament or subordinate legislation for the purposes of “reforming legislation” or “implementing the recommendations of any one or more of the United Kingdom Law Commissions, with or without change”, via parliamentary order, subject to the following constraints:

  • They cannot impose, increase or decrease taxes.
  • They cannot create new offences carrying more than 2 years in prison as a punishment or increase punishments for existing offences beyond 2 years in prison.
  • They cannot make provision in areas of legislation devolved to the Scottish Parliament or Welsh Assembly.
  • They must have a consultation first with people the Minister specifies.
  • Either of the Houses of Parliament can insist on both Houses having to approve of the order first, but are required to do so within 21 days of the order being placed.

Thus the government wants to be able to alter any primary legislation by parliamentary order, including being able to create new criminal offences carrying upto 2 yrs imprisonment. Note that as things stand the bill itself could be modified this way (e.g. to make it even easier to alter legislation). Note also that at best, there’s a single vote on the order and amendments cannot be tabled (though the Minister can produce a revised order under the “super-affirmative” procedure).

See spy.org.uk for more discussion.

Prosecution and police to decide sentence where defendant pleads guilty to minor offences

Posted by James Hammerton @ 2:57 am on 22 January, 2006.
Categories democracy and the rule of law.
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Recently, the government has proposed that if a suspect pleads guilty to a minor offence, the sentence will be decided between the police and prosecutor (note no mention of the defence!):

Lord Falconer, the Constitutional Affairs Secretary, and Mike O’Brien, the solicitor general, are drawing up proposals to bypass the court process in as many as half the cases heard by magistrates every year.

Defendants who plead guilty to offences such as shoplifting, theft and criminal damage would have their punishment decided by the prosecutor, in consultation with the police, instead of going to court. Ministers believe that about half of the two million cases heard annually by magistrates could be handled in that way.

The plan would represent a revolution in the criminal justice system which has always been based on the principle that sentencing should be weighed in court, with the defence entering a plea in mitigation in response to the prosecution’s case.

Probation officers and magistrates are worried about power over sentencing being handed to the police and prosecutors. Judges are also likely to worry about any proposal to undermine the court system. The Government’s attempt to end jury trials in some cases was blocked by the Lords.

This is an insidious measure. The courts are there not just to decide guilt or innocence but to decide on an appropriate sentence in an impartial manner. Allowing the police and prosecution to decide on a sentence between themselves violates this impartiality — these parties have vested interests in the case. Also the defence is notably absent from the decision.

If the proposal goes ahead, there will be a strong incentive for the police/prosecution to pressure a suspect to admitting guilt — it will be lot less effort and lot less time consuming if the suspect admits guilt and the police and prosecution get to decide the sentence. The police will notch up a conviction and save time and money and will thus be quite happy with such an outcome. This does not mean that such an outcome would be just.

The proposal is thus in many ways typical of the Blair administration — it puts administrative convenience and the saving of money before justice, whilst weakening the power of the courts and replacing the rule of law with the rule of men.

Also, as the Talk Politics blog notes, the European Convention on Human Rights prevents someone being either imprisoned or forced to carry out a task (e.g. community service) without a fair hearing before a court, leaving only a fine as a possible punishment in such cases. So unless Blair intends derogating from the ECHR (or, perhaps, arguing that the police and prosecution themselves constitute a court!) the only sentence the police/prosecution could pass is a fine. Is having the perpetrator paying a fine likely to be what the victim of a theft or criminal damage wants?

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