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The Tory legal bits

Following my post on the “legal bits” of the Labour manifesto, here’s my analysis of the most important Conservative proposals of particular legal interest. I warn you: this is a long one, and needs sub-headings.

Constitutional law

On the constitution, the Tories promise that

A Conservative government will change the law so that never again would a government be able to agree to a Treaty that hands over areas of power from Britain to the EU without a referendum. That would include any attempt to scrap the pound for the euro

which seems to me to go further than is sensible. I can see that the transfer of power to the EU is a problem in the view of Conservatives (who now seem overwhelmingly Eurosceptic). I also think there shouldn’t be treaty change in the next Parliament, since the EU has just had what its leaders sold as the one big necessary treaty change for the foreseeable future. But this proposal refers to the indefinite future, and would require a referendum even for any small transfer of power that we can’t imagine now and that everyone in the UK agreed with. What’s more, since the Tories are not proposing any sort of procedural entrenchment of this law (for instance by saying only a Parliamentary vote of 75% could amend it, an approach that would be highly constitutionally controversial), a future post-Cameron Europhile government could, legally, simply repeal it first, then transfer power to the EU without a referendum. In my view the entire proposal is a misuse of legislation for the purpose of declaring political intent and trying to box in future governments politically – and a policy which will reduce the UK’s seriousness as a negotiator in Brussels.

A Conservative Government will also introduce a United Kingdom Sovereignty Bill, to make it clear that ultimate authority over our laws stays in this country

This, as I’ve written before, is a bad and entirely misguided policy. Today’s Conservatives seem to think this country has a difficult legal relationship with EU law or that we’re somehow more open to attack from the EU law virus than, say, Germany is; they want some sort of “firewall”. In fact our law works well with EU law, and we’ve not had the problems Germany has had in marrying national and EU law, difficulties resulting from its written constitution and which have led it, for instance, to be keen on the EU Charter of Fundamental Rights as a means of ensuring EU law is very visibly respectful of German constitutional rights. A sovereignty bill is an unnecessary waste of time if (as I suspect) it has no real legal effect, and dangerous if it does have any. A real minus for the Tories, this one.

The Conservatives would

Replace the Human Rights Act with a UK Bill of Rights

a half-baked policy which has never been sufficiently explained and which I don’t think the Tories themselves yet understand. Dominic Grieve has been saying there is no plan to resile from the European Convention on Human Rights itself, and has been doing an impressive job of edging this policy towards coherence. My impression is that Conservatives do not want simply to repeal the HRA – they want a tool that will somehow “interpret” the Convention rights in a British way and even add to them. I can only wait to see what the actual plan is though, if they get in. In my view what they need to do (I don’t agree with it) is to repeal section 4 of the Human Rights Act, so that courts can no longer declare legislation incompatible with the Convention rights, and amend section 3 so as to weaken the obligation to interpret legislation compatibly with the ECHR, for instance by limiting the obligation so as only to apply where legislation is ambiguous in the first place. I imagine they’ll also want some sort of provision telling British judges to apply Convention rights having regard to common-law traditions of liberty and so on. Dominic Grieve is welcome to send me a consultancy fee if he finds himself in government next month.

Going on, the Conservatives say they’ll

Strengthen Parliament so that it acts as a proper check on the power of ministers

which sounds fair enough but is unexplained,

Restore the integrity of the ballot and give voters the right to kick out MPs guilty of wrongdoing

again fair enough. Presumably they mean doing something about electoral fraud; as for kicking out MPs, this may be pointless if it’s so hard to be found “guilty of wrongdoing” that no MP ever is actually kicked out. They’d

Work to secure a consensus for a substantially elected House of Lords

a policy I agree with; I think getting this right is more important than doing it quickly, and that consensus would be a good thing if it can be achieved. And the Tories say they’d

Address the West Lothian Question by ensuring that legislation on devolved issues that only affects England, or England and Wales, can only be passed with the consent of MPs from England, and where applicable Wales.

I think I have to agree with this policy too. This would be a good deal more politically radical than would first appear if there were a clear Tory majority, but if it became settled Parliamentary practice it would open the real possibility of a UK administration that had a majority for its UK policies (on foreign affairs, defence, tax, pensions and so on) but relied on support from other parties or was even entirely captured by the opposition in respect of its policies only affecting England (on health, for instance) or England and Wales (on crime, say). That might have some of the bad consequences of coalition government, and be difficult for voters to follow, but it wouldn’t necessarily entail either. And the case for it is strong, based not only on fairness but on the simple consitutional proposition that an MP should only determine public policy on things for which they are directly accountable to electors. I don’t think I can possibly argue against that, and I wouldn’t want to.

Civil liberties

On civil liberties, Conservatives would

Roll back Labour’s surveillance state, curtail powers of entry for state officials, and introduce new protections over the use of personal data;

Scrap ID cards immediately;

Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model;

Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately; and

Allow people with historic convictions for consensual gay sex to have those convictions removed from their criminal records.

I’m not part of the current trend for seeing the “civil liberties agenda” as one big issue, with CCTV, DNA and ID cards etc. all part of the same big problem. I think each is separate and must be treated on its own merits. And I certainly do not think we live in a “surveillance state”. Their use of that language makes me take the Conservatives less seriously. They don’t actually mention CCTV as a matter of interest – which makes me suspect they have no policy, just the desire to appear not to like CCTV. On ID cards, I think the Tory policy is fair enough. I’m absolutely against any compulsory ID cards, and am unconvinced about voluntary ones either. Best to save money by scrapping them. On DNA, I’ve written elsewhere that I’m against Tory policy on this. Their line isn’t quite so different from Labour’s as many believe – they’d retain the DNA of innocent people – but I don’t see why the shorter Scottish retention periods are so much less intrusive of liberty that they justify the loss of investigative power they’d entail.

I entirely agree with the proposal on expunging past criminal records for consensual gay sex. That seems to me the right approach where the law has not only been changed but is believed by a majority to have been morally wrong at the time. I also agree this should be voluntary. A few gay people may see their criminal record as a badge of honour or an important reminder of previous intolerance: the rest of us should not rewrite history unless they want us to.

The courts, legislation and law generally

On the courts, the manifesto says a Conservative government would

Tackle unacceptable cultural practices by… ensuring religious courts act in accordance with the Arbitration Act.

I’m not sure what this means – unless it means sharia courts should only rule on matters than can lawfully be arbitrated and avoid quasi-criminal matters and any family matters having other than strictly religious significance. In which case, good. I’d like to see this fully explained, though, before I can say I wholeheartedly support it. Hostile as I am to any formal recognition of sharia law whatever (or any other religious law for that matter), I am content for religious people to have entirely religious matters dealt with by religious courts, if they want.

The Tories have an interesting proposal on legislation – or what they’d call regulation. They’d

Reduce the burden of red tape on business with a ‘one in one out’ rule for new regulation and regulatory budgets for departments so that new regulations cannot be introduced unless the burden is reduced elsewhere. And we will give the public the opportunity to force the worst regulations to be repealed

That sounds fair enough, and harks back to Michael Heseltine’s and Neil Hamilton’s (remember him?) promises to cut red tape in the past. I doubt it will amount to much, though. A lot depends on whether you classify legislation as imposing a burden or whether you see it as “freeing things up” – if you can characterise it as the latter, then not only does it not count as “one in” – it counts as “one out” and actually permits the imposition of another burden somewhere else. And when they say “one in”, how much is “one”? Many pieces of delegated legislation – statutory instruments – contain a number of provisions. Will the formula match instrument for instrument (in which case it’ll be easy to churn out one little liberalisation for every huge piece of regulating legislation) or “measure for measure”, in the Bard’s words? The latter would be a major exercise in detailed analysis. Plus – would Acts of Parliament themselves count as part of the exercise? Why not?

On law generally, the Tories would

Conduct reviews of family law, legal aid and the libel laws;

and

Review family law in order to look at how best to provide greater access rights to non-resident parents and grandparents

of which libel reform is very welcome. None of the parties have made detailed proposals on this, but all of the main parties are now committed to libel reform of some kind. It looks very much as though we’re at the end of an era for libel law.

Family lawyers will be unimpressed by the Tory use of the old “access” terminology, which may seem minor or may reflect a world-view stuck in the past. The proposal for a review is fair enough, but I hope today’s Conservatives are not (as I suspect they may be) still influenced by old-fashioned ideas about fault-based divorce and so on. The suggestion of a “review” of legal aid will however chill yet further the spines of legal aid solicitors, and with good reason.

Crime, policing and sentencing

On crime, the manifesto talks about

Giving people the power to elect an individual who will set the policing priorities for their community

which is something I’m not sure about. Democratic control is a good thing, and must be genuine: I don’t think indirect control of the police by councils or unelected authorities is really democratic. But I worry about American-style populism in policing.

The Tories promise to

Introduce a system of honesty in sentencing where judges can give some categories of offender minimum and maximum sentences, and prisoners who want to be released after serving the minimum will have to earn their release through participation in education, rehabilitation and work programmes

none of which I object to. I think the apparent dishonesty whereby an offender is sentenced to x years in prison, while everyone in the justice system knows that by law he will serve x – y years, is wrong. To be clear, I agree with the current situation under which time spent on remand in custody before trial is counted as part of a subsequently-imposed prison sentence (which automatically gives rise to an apparently dishonest x – y effect). But I think any dishonesty in that is removed if the judge announces the effect of the calculation publicly at the time of sentence. I also think it should be possible for a prisoner to be so reformed as to be released on parole before serving the full term to which he was sentenced. I would not want all prison terms automatically to become absolute minima. But I do think the normal expectation should be that a prisoner given a determinate sentence should serve that period, and that any reductions should be earned. The maximum and minimum sentence idea seems reasonable enough.

The manifesto also promises to

Create a rehabilitation revolution, contracting with the private and voluntary sectors to provide post-release support, and paying them by results with the savings made in the criminal justice system from lower crime.

I hope that might be true. If the Conservatives really are serious about rehabilitation – good. But I wonder really whether they’d have the commitment to spend enough, and to care enough about what can be easily defamed as the “bleeding heartish” side of penal policy, to make this work.

Europe

Earlier I discussed the most important Tory policies on the effects of the Lisbon Treaty and “giving away powers”, when dealing with their constitutional proposals. But there’s another minor aspect to that:

As the Lisbon Treaty allows a number of the further changes to the EU’s rules without a new Treaty, a Conservative Government would change the law so that any use of these “ratchet clauses” would require full approval by Parliament, and where they amount to handing over an area of power, e.g. abolishing vetoes over foreign policy, a referendum would be required. A Conservative government will never sign up to a European Public Prosecutor.

As far as Parliamentary approval is concerned, they must be right that Parliament’s approval be sought; and changing the law to require that would have some effect (because a future government would have to bring the matter to Parliament if it wanted to repeal the requirement). So, fair enough. As regards the proposal about referendums, however, I have the same objection to that as I set out above to the idea of legally requiring any referendum on transferring powers to the EU.

The Conservatives remain concerned about the EU Charter:

Labour claimed to have obtained an opt-out from the Charter of Fundamental Rights, but were forced to admit it was just a ‘clarification’. We want to upgrade this to a full opt-out so that it cannot be used by EU judges to re-interpret EU law affecting the UK

I’m sure David Cameron has to go for this to satisfy those who are wracked with Eurofears about this Charter. In reality, if he gets this opt-out he will have expended a great deal of political capital to no real effect. As I’ve written before, although the Charter is now legally binding, the government succeeded in negotiations in making sure the text really only binds the UK to do things it’s bound to do already. We never did need any legal protection from it – the government’s almost meaningless protocol was a misguided effort to ease misguided fears. An “opt out” is one of the least important legal issues affecting this country. I don’t agree with him on his social opt out, but he’d do much better to focus on that, which would have real effects.

The manifesto goes on

We want broader protection against EU judges extending their control over Britain’s criminal justice system and we want to ensure that only British authorities can initiate criminal investigations in Britain.

I have no objection to this. There has been some creeping competence in the criminal field, and it seems to me a legitimate policy for a British government to oppose it.

Crucially as far as EU social and employment law is concerned, the Conservatives say

We want to restore national control over those parts of social and employment legislation which have proved most damaging to our businesses and public services. For instance the application of the Working Time Directive on the NHS

This isn’t surprising, especially the mention of the Working Time Directive, which previous Conservative government always opposed. It’ll be interesting to see if a Tory government could negotiate it. Interestingly it doesn’t go nearly as far as the proposal recently by Open Europe that Britain should opt out of all EU social and employment law, including equal pay for women.

The manifesto says

We will fight for wholesale reform of the Common Fisheries Policy to encourage sustainable practices, give communities a greater say over the future of their fishing industries, and bring an end to the scandal of fish discards.

For once, this is a Tory European policy that I have real sympathy with. I think it’s odd that we don’t eat more fish than we do in Britain – and I worry about fish stocks. I’m not sure current EU policies are working well enough to deliver sustainable fish stocks and a sustainable fishing industry. I’m not saying fisheries policy has to be “repatriated” – but I do think reform would probably be a good thing. Fair enough if the Tories want to argue for that.

Employment

Apart from the EU social opt-out I’ve already mentioned, as far as employment law is concerned the Tories say they will

Introduce a new system of flexible parental leave so parents can share maternity leave between them or both take time off simultaneously

which sounds good,

Extend the right to request flexible working to every parent with a child under the age of eighteen; and ensure that the government leads from the front by extending the right to request flexible working to all those in the public sector, recognising that this may need to be done in stages

which sounds very good, and that they’ll take

Measures to tackle the gender pay gap, including stronger legislation to prevent employers discriminating and better careers guidance for young women

which sounds somewhat unreal in a Conservative manifesto. Do they mean this? It may only be an impression of mine, but Conservatives rarely seem to support any of this when it comes to bringing forward actual measures.

Less welcome in my view, as a former civil servant, is the suggestion that

We will improve financial discipline by introducing a fiduciary obligation to taxpayers in civil service employment contracts

Fine on its face – but why should this just apply to civil servants? If it applies to ministers and special advisers too, I’ll back it.

Immigration

We’re told

There will be an English language test for anyone coming here to get married

which sounds fair enough, assuming someone’s intending to settle here (although it doesn’t actually say people will be turned away if they fail the test). I suspect too that exceptions will be needed for instance to cope with EU citizens, and those who come to marry EU citizens here; they may have the right to come to do that regardless of their language skills.

Education

The Conservatives want to

Restore discipline and order to the classroom. We will give teachers the tools and powers they need to keep order in the classroom. We will abolish the legal requirement of 24 hours’ notice for detentions; reform the exclusion process; and give headteachers the power to ban, search for, and confiscate any items they think may cause violence or disruption.

I think I agree with all of this. I think schools need to be freed from legal restrictions which I’m sure don’t help them build a good learning environment.

Other stuff

I might have mentioned tax simplification (a good idea, but one that involves setting up a new quango – something the Conservatives don’t usually like) and the abolition of the Financial Services Authority (who will do the micro-regulation of financial firms that consumers need?) but I suspect by now you may have had enough.

Conclusion

As a Labour supporter, I’m far from being a natural Conservative, and so perhaps I’m likely to be biased – my inclinations come across in my comments on their employment law policies I think. I do think though that purely in legal terms, some of these policies are bad – especially the big-ticket constitutional items of the relationship between the UK and Europe, and on human rights. I’m afraid that a Cameron government would tinker with our constitution at best pointlessly and at worst dangerously in order to pacify extreme Eurosceptics in its own ranks.

To try to secure a social opt-out is one thing: I may disagree with it, but it’s perfectly coherent and achievable, legally speaking. To try to get an opt-out from the Charter of Fundamental Rights is liveable with, even if it’s an silly bee in a silly blue bonnet. But the proposed national sovereignty bill is constitutionally incoherent nonsense, at best pointless and at worst dangerous. The proposal to require referendums for transferring power to the EU goes too far, and has little purpose beyond the declaratory and partisan. The human rights proposals are unexplained and as yet are incomprehensible.

Otherwise, some of the more workaday proposals seem to me decent ones. I don’t share the Tory approach to civil liberties, and I’m not persuaded on elected police chiefs, but I welcome what they say about libel reform, honesty in sentencing, looking for a consensus on a mainly elected Lords and moving to “English votes on English issues”.

And they don’t want a written constitution, at least.

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  1. The Tory intention to repeal the Human Rights Act is likely to get them into difficulties over devolution since its provisions are explicitly enshrined in the Scotland Act. Presumably Alex Salmond won’t miss that chance to re-open the whole devoplution settlement. Incidentally, both the Scottish and Northern Irish Human Rights Commissions have decided to oppose repeal of the UK Act.

  2. Repealing HRA section 4 wouldn’t take away the judges power to declare (i.e. simply say or observe) that a statute was incompatible with the Convention. It would just (i) *possibly* reduce the political impact of the presence of such statements in a judgment, although I suspect not, and (ii) more importantly, annul the fast track amendment procedure that a s4 declaration (but not a mere declaration!) makes possible under s10. So your suggestion would actually disempower the executive, not the judiciary, and is likely to be in conflict with the instincts that lie behind the tory attack on the HRA.
    Your suggestion that they should go for s3 is nearer the mark, so you might still earn that consultancy fee!

  3. By the way, I could not actually find the bit about “religious courts” in the actual manifesto. However, it appears on the Conservative Party’s website under the headings of “Where we Stand” and “Community Relations”.
    .-= ObiterJ´s last blog ..Restorative Justice ??? =-.