Unnecessary legislation

One of the commitments in the Coalition Agreement was the repeal of unnecessary or outdated legislation. The government is now consulting on a bill to implement this commitment.

The Ministry of Justice is collating suggestions for repeal based on the following criteria:

  petty restrictions;
  government over-interference in people’s lives;
  unnecessary criminal offences;
  unnecessary regulations;
  obsolete laws;
  excessive layers of law;
  duplication;
  laws that inform or guide rather than impose an obligation;
  EU and health and safety gold-plating, where gold-plating can be identified;      bye-laws that impose unnecessary restrictions on people’s lives.

The Law Society wants to know what legislation you believe should be repealed or retained, and why. The Society says that it is in a position to have a significant impact on the bill’s shape and content, and would like members to play a role in this process. It is anticipated that the bill will be published in 2012. Members are encouraged to suggest:

  specific proposals for legislative repeal, including both primary and secondary     
  legislation;
  further potential categories of repeal;
  views on the suggested categories/structuring of the bill.

The Law Society asks you to send your views to:

consultationresponse@lawsociety.org.uk

One of the more surprising pledges in the Coalition programme for government was to extend anonymity in rape cases to defendants. Such a move would turn the clock back to 1976, when the Sexual Offences Act introduced anonymity for those accused of rape. That provision was repealed in 1988. Shortly after the Coalition pledge, which provoked a storm of adverse publicity, deputy prime minister Nick Clegg signalled a willingness to drop the government’s plans when he told Parliament: “I want to make it clear that, although the Government have proposed the idea, we want to listen to everybody who has a stake or expertise in or insight into the matter. If our idea does not withstand sincere scrutiny, we will of course be prepared to change it.”

Now it would seem that the government has abandoned these plans. When asked in the Commons last week if he will conduct a public consultation on whether to grant anonymity to defendants in rape cases, justice minister Crispin Blunt said: “The Government are minded to strengthen anonymity before charge. We want to hear the views of those who may have any new evidence to assist our deliberations, and we will bring our conclusions to Parliament in the autumn.” However, he went on to say: “Since the principal points of judgment around the issue are clear and very narrow…the Government do not propose to manage a full, formal public consultation.” Crucially he added: “We want in the first instance to try to find a non-statutory solution, and given that we had 21 Criminal Justice Acts passed over the 13 years of the last Administration, I am sure that Labour Members will understand why we are loath to find even more statutes to put on the statute book.”

Instead the government will negotiate with the Press Complaints Commission to persuade newspapers and websites to grant anonymity to suspects. “It was agreed on both sides of the House when the Sexual Offences Act 2003 went through Parliament that all people charged with offences ought to have their identity protected until the point of charge. That is the guidance that the Press Complaints Commission put into effect in 2004.” He added that there is an issue around the strength of that guidance which required attention. According to the ‘Guardian’, Government sources said the minister had not performed a U-turn because ministers had not committed themselves to changing the law. Ministers are still committed to granting anonymity to suspects between arrest and charge and believe that a change in the PCC code is the best way of achieving this.

The Government has wasted no time in pursuing its aim to review the legal aid system as promised in the Coalition programme for government published in May.

In a written ministerial statement to Parliament on 23 June, Secretary of State for Justice Kenneth Clarke set out the background of the Government’s immediate priority to reduce the financial deficit and encourage economic recovery. The main burden of the deficit reduction is to be borne by reduced public spending, coupled with the most efficient and effective delivery of public services. He said: “I am seeking to develop an approach to legal aid spending which balances these necessary financial constraints with the interests of justice and the wider public interest. We will seek to develop an approach which is compatible with fair and necessary access to justice for those who need it most, the protection of the most vulnerable in our society, the efficient performance of the justice system, and our international legal obligations.” He concluded by stating that the government will consider the policy and intend to seek views on a proposed new approach in the autumn.

The Law Society had already fired its first shot across the bows in late May when it warned that plans announced by the Chancellor of the Exchequer to cut the Ministry of Justice budget by £325 million must not include front line legal aid services at a time when the public needs them the most. This warning came after a recent YouGov poll revealed public support for legal aid. The research, conducted on behalf of legal research company Jures, showed that over two-thirds of consumers backed publicly funded legal advice through the legal aid system for those unable to afford a lawyer. Law Society President Robert Heslett said: “In a time of austerity, it is no doubt tempting to see legal aid as an area where cuts could safely be made without arousing voter concern, but this is precisely the time when legal aid services are most needed, to protect ordinary people from unfair decisions about issues on their employment, housing and benefit entitlement; more than that, to ensure that children receive the best representation in care and family cases.” He added that he hoped the necessary cuts would come from the Legal Service Commission’s own administrative costs and the fees of a very few extremely well paid barristers rather than funds required for legal aid. “We are urging the Justice Secretary to make savings in areas that will not deny the public basic legal rights.”

Blog “Civil liberties and the coalition government”, posted last Monday, dealt with the initial Tory and Liberal coalition agreement. It was to be followed in due course by a final and fully comprehensive agreement, and now, surprisingly early, comes that agreement. It is a schedule of over 400 objectives under 31 separate detailed headings (compared with only 11 headings in the original document).

The Civil Liberties section remains unchanged apart from one significant addition. This states: “We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties”.

One of the new sections covers Crime and Policing. There is a string of proposals designed to ensure that police forces have greater freedom from Ministerial control, are better able to deal with the crime and anti-social behaviour and are much more accountable to the public they serve. There are also a number of specific alcohol related proposals – a ban on the sale of alcohol below cost price, an overhaul of the Licensing Act to give local authorities and the police much stronger powers to remove licences, a doubling of the maximum fine for under-age alcohol sales to £20,000, etc. There will be better recording of hate crimes against disabled, homosexual and transgender people, which apparently are frequently not centrally recorded.  And there will be a review of the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed.

Another new section goes under the heading of Justice. There are a number of measures designed to achieve more effective sentencing policies, as well as overhauling the system of rehabilitation to reduce reoffending and provide greater support and protection for the victims of crime. Other specific measures include delivering up to 15 new rape crisis centres, and give existing rape crisis centres stable, long-term funding using proceeds from the Victim Surcharge; and extending anonymity in rape cases to defendants. The introduction of effective measures to tackle anti-social behaviour and low-level crime is promised, including forms of restorative justice such as Neighbourhood Justice Panels. And yet another review, this time of legal aid “to make it work more efficiently”.

The full text of “The Coalition: our programme for government” can be found at:

 http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_187876.pdf

Party manifestos are really little more than wish lists. But the unprecedented Tory and Liberal coalition agreement, produced at breakneck speed, and to be followed in due course by a final and fully comprehensive agreement, is something else. It is little short of a Queen’s speech for a whole parliament. Section 10 of the agreement is about civil liberties. The preamble states: “The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.” There follow 12 specific pledges.

 Britain leads the world in the use of CCTV. As a result, surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy. The agreement pledges further regulation of CCTV, the ending of storage of internet and email records without good reason and the adoption of the protections of the Scottish model for the DNA database. The presumption of innocence and the principle that every defendant has the right to be tried by a jury were weakened by the Domestic Violence, Crime and Victims Act 2004 and the right to silence was further eroded by the Counter-Terrorism Act 2008. Under the same Act an individual and his lawyers may be barred from court proceedings. Freedom to communicate in private has been effectively extinguished by the Regulation of Investigatory Powers Act 2000. The rights to freedom of assembly and demonstration were eroded by the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. The coalition agreement promises the protection of historic freedoms through the defence of trial by jury and the restoration of rights to non-violent protest.

In June last year, the law lords dealt a major blow to the controversial use of control orders on terror suspects, saying that reliance on secret evidence denies them a fair trial. The then Liberal Democrat home affairs spokesman, Chris Huhne, and Chris Grayling, the then shadow home secretary, went on record to welcome the law lords’ decision and to demand an end to “cruel and counter-productive punishments without trial”. Under section 44 Terrorism Act 2000 police can stop and search anyone in a designated area without suspicion that an offence has occurred. Last year a total of 117,278 people were stopped and searched. The coalition agreement promises safeguards against the misuse of anti-terrorism legislation.

Kenneth Clarke, the new Justice secretary, and his team, including Lord McNally, Lib Dem leader in the Lords, will immediately commence work on the promised ‘Freedom or Great Repeal Bill.’ Other major provisions include the scrapping of the ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database; the outlawing of finger-printing of children at school without parental permission; and the extension of the scope of the Freedom of Information Act to provide greater transparency. There will be a review of libel laws to protect freedom of speech and a new mechanism to prevent the proliferation of unnecessary new criminal offences.

The full text of the Conservative Liberal Democrat coalition Agreement can be found at:-

http://www.conservatives.com/News/News_stories/2010/05/Coalition_Agreement_published.aspx