The ‘Brexit Freedoms’ Bill and Retained EU Law

Video

This was another session with the Constitution Unit of University College London.

The topic of “skeleton bills” and “Henry VIII powers”, which have been highlighted a lot in recent political blogs and podcasts, was also prominent here. Although this problem is said to be particularly bad in the post-referendum era, it has been in the making for many decades. I asked the panel (at 1 hour and 35 seconds in):

“If the trend towards skeleton bills and secondary legislation gas been noticed for many decades, does this indicate a problem with the permanent government rather than the politicians?”

It was put to the panel simultaneously with two other questions. I will try my best to disentangle the answers.

Doctor Tom West said: Absolutely this is a long-running trend. The Legislative and Regulatory Reform Act 2006 had very wide powers and people called it the “Abolition of Parliament” Bill. There are all sorts of examples of this being an issue, such as the financial crisis of 2008. Ministers, once they’re no longer in power, will come clean that there is an issue – Theresa May mentioned it at an IfG lecture last week. It’s very difficult while you’re in power to give up these very convenient ways of making law through secondary legislation. Brexit and COVID have raised the profile of this problem, but it is not exclusive to them. That’s what our Delegated Legislation Review Programme is looking at – we think there’s a need for a reset of the whole system of what these powers can be used for in the first place and how they can be scrutinised. We are in the middle of developing proposals.

Ruth Chambers said: This trend towards framework bills has been going on a long time. I’ve worked on environmental legislation for over twenty years. Just to give one practical example – it used to be that when governments would state consultation requirements on the face of the bill they would be quite explicit about which sorts of people and groups the minister should consult before taking powers forward. Now the more standard construction says the ministers can consult whoever they think they need to. Obviously that has consequences – bills often lack the future-proofing edge. It doesn’t matter how many times you have that conversation with ministers while they’re passing legislation, it doesn’t quite register that at some point in the future someone else will be wielding those powers. It also has huge implications for the public – the public businesses and civil society organisations really need to stay the course and engage with the secondary legislation not just the bill.

Fighting Corruption in the Judiciary

Many times before I have virtually attended the kinds of events that I could not attend in person. Sometimes it is because the location is too far away, other times because I am not a member of the organisation hosting. On this occasion it was both.

When I first found the flyer for today’s presentation on Eventbrite I assumed it would be an academic or professional presentation similar to all the others. Only upon entry did I realise it was actually the preparatory talk to a competition (which I obviously will not be entering).

The challenge was for high-schoolers and undergraduates to imagine that they were junior staffers at the justice ministry in a fictional Eastern European country which, having emerged from the Warsaw Pact, signed and ratified the United Nations Anti-Corruption Convention but then, after a change of government, withdrew from it, and wanted to make changes to the method of appointment and dismissal of judges. The student’s task was to make a video presentation about the meaning and consequence of corruption. They should outline the basics of a legal strategy to bring their fictional homeland in line with the convention again, and produce three key ideas on enhancing judicial independence.

The speaker, Alice Thomas, then went on to make some general points about political corruption: It exists everywhere in some shape or form. What we know is only what other people have found out, and in countries without an independent media it can be difficult to find out anything. Most countries have anti-corruption strategies, at least on paper. The United Nations often follows the work of smaller regional groups, because having fewer members means it takes less time to reach decisions. North Korea, unsurprisingly, did not sign the aforementioned treaty at all. Some countries signed but did not ratify. International cooperation is important for asset recovery and information exchange, since corruption is often a cross-border phenomenon. The judiciary, legislature and executive are there to monitor each other. In a country without a functioning judiciary everybody can basically do as they please. Corruption may take the form of individual judges being bribed or coerced rather than the whole system being controlled. For a government to ensure judicial independence without inadvertently encroaching on it is a complicated task, since attempts to scrutinise the courts would themselves resemble the executive applying  political pressure.

Rather amusingly, Thomas ended by telling participants to be careful about their sources and not to rely on Wikipedia because “it’s not always very accurate. It’s a very subjective thing. It relies on who writes what in it.” – me, for example.

EXTERNAL LINKS

Who am I to Judge?

This has been a busy week for state ceremony, yet you wouldn’t know it from the news.

Friday 1st October was the beginning of the legal year 2021-22 in England & Wales, marked by the procession of hundreds of judges in their full dress uniform to a special service at Westminster Abbey. This included readings by the Lord Chancellor and the Lord Chief Justice, as well as a sermon by the preacher of Lincoln’s Inn.

The legal year in Scotland began on Monday 27th September. It featured similar events at the Court of Session and St Giles’s Cathedral. The Lyon Court was one of the bodies involved and a number of new officers of arms had their inaugurations.

On Saturday 2nd October the sixth devolved Scottish Parliament had its ceremonial opening, though of course it has been sitting and legislating since May.  The Queen visited the chamber, accompanied by the Duke & Duchess of Rothesay and Edinburgh. Many heralds were in attendance carrying with them the crown of James V.

It is a little disappointing that these events were so ill-publicised, even accounting for the distraction of party conferences and fuel queues. Rather than major newspapers I have mostly had to piece together details of all three ceremonies from the websites and social media accounts of the people involved.

Curiously this is not consistent across time – footage of judges’ processions from a few years ago can be found on YouTube, and some from many decades back are archived by British Pathé.

EXTERNAL LINKS

Judges at Westminster Abbey

Heralds at the Court of Session

The Scottish Parliament