Coalition justice 2

Roger Smith continues to identify the good, the bad & the ugly in the coalition

This is the second of three articles on the policies of the coalition government. The first dealt with its approach to civil liberties. This covers matters relating to the constitution. The third will cover cuts. The articles are arranged in order of praise. The coalition is excellent on civil liberties (NLJ, 2 July 2010, p 917); potentially disastrous on cuts; and more balanced on the constitution.

Precedent

The coalition created welcome constitutional precedent by the very publishing of its Programme for Government. This is a form of extended manifesto in which the two parties set out their legislative programme for the Parliament. It was the result of the deal-making that followed the inconclusive election. This is unfamiliar for us but very much standard practice in Europe. Dutch governments, for example, do this regularly and are sufficiently enlightened to publish the resulting programme in English on their government website. Their latest agreement was made in 2007 between the three parties that made up the government. The advantage of this kind of document is that, though it covers the same ground as the election manifestos, it is less tendentious. The agreement records in detail agreement between parties that, on some issues, hold diametrically opposed views. After rather too long a period of “sofa government” with policy-making apparently made at the prime minister’s whim, there is a welcome coherence to the result.

The programme is understandably most convincing where the two parties agree and most interesting where they don’t. That is why the section on civil liberties is the clearest. It also helps that the coalition can mainly rest its case on unwinding the repressive legislation of its predecessor. Agreement was harder on constitutional matters where Liberal Democrat and Conservative instincts differ. One example is provided by the fate of elected police commissioners. Like them or love them, the Tories were in favour: Liberal Democrats against. So, we are treated to a commitment to “measures to make the police more accountable through oversight by a directly elected individual, who will be subject to strict checks and balances by locally elected representatives”. Somehow, this looks like a somewhat unwieldy compromise with both elected police authorities and commissioners.

Europe

Europe was clearly another difficult issue. There is all sorts of huffing and puffing about a “referendum lock” on further EU constitutional change. But, no-one in Europe has the stomach for far-reaching change after the marathon of the Treaty of Lisbon. Additionally, David Cameron is already signalling that certain changes—particularly relating to provisions covering the Eurozone countries—might be too minor to attract the lock. The coalition commits itself to arguing for cutting back the Strasbourg visits of the European Parliament. But everyone agrees that is a good idea—except the French and the City of Strasbourg which does rather well out of the Parliament’s presence. They have always stopped reform before and there is little reason to think that they will not continue to be successful.

A programme like this requires cautious scrutiny—if not a sceptical eye. The section on Europe contains a commitment to “examine the case for a UK Sovereignty Bill to make it clear that ultimate authority lies with Parliament”. This is dear to Conservative hearts though it is not clear what such a Bill would say. The danger here is of unintended consequences. Over three decades the courts have developed a particularly English approach to judicial review which has both preserved parliamentary sovereignty and increased judicial scrutiny of government. It would be a tragedy if a bill designed to declaim our independence of Europe ended up by limiting the power of our judiciary. Nevertheless, we might note that the Liberal Democrats got this commitment toned down to “examining the case” rather than actually doing anything. So, this is something which is probably heading for the long grass—where it probably should remain.

Contention

There are more commissions and committees to cover contentious areas—most notably in relation to the Human Rights Act 1998, as noted in the first article. We get 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 should be vigilant but this looks like it is going nowhere very fast.

At times, the document is frustratingly general. This may be unavoidable in the time that was available for its drafting and it will be interesting to see whether any successor has a bit more detail. There is, for example, a commitment to review the Extradition Act and the UK/US extradition treaty—the source of a long-running number of causes celebres including the NatWest Three, Gary McKinnon and Ian Norris. However, the real issue is rather different. The Extradition Act took as a basic format implementation of the European Arrest Warrant which did away with a variety of safeguards on extradition. However, countries were allowed to identify certain cases where a judge could have a discretion to extradite or not. We chose not to implement these. We should examine implementation of these rather than a treaty with the US which, frankly, we have no chance of getting our ally to reconsider.

Nick Clegg’s eminent predecessor, Gladstone, called the UK constitution “the most subtle organism which has proceeded from the womb and the long gestation of progressive history”. That was a bit over the top. However, overall, the coalition programme shows that the UK constitution continues to mutate and to grow. That is one of its great virtues.

Roger Smith is director of JUSTICE

• Add new comment
• Printer-friendly version