BLAIR’S BRITAIN, 1997–2007
Page 51
69 Campbell v. Mirror Group Newspapers Ltd [2004] 2 AC 457.
70 Prince of Wales v. Associated Newspapers Ltd (2006) EWCA Civ 1770.
71 Jameel (Mohammed) v. Wall Street Journal Europe Sprl. 2006 UKHL 44, [2006] 3 WLR 642.
Reynolds v. Times Newspapers Ltd [2001] 2 AC 127.
72 R v. Secretary of State for Home Department ex p. Anderson 2002 UKHL46.
73 Though not to the point of absurdity: Brown v . Stott [2003] 1 AC 681 (no violation of the
privilege against self-incrimination in compelling a defendant suspected of drink-driving
to identify herself as the driver of the car).
74 R (European Roma Rights Centre) v. Immigration Officer at Prague Airport [2005] 2 AC 1.
75 [2005] 2 AC 68.
discriminatory. Lord Bingham of Cornhill explained how the balance of
constitutional power was struck:
It is also of course true, that Parliament, the executive and the courts have
different functions. But the function of independent judges charged to
interpret and apply the law is universally recognised as a cardinal feature of
the modern democratic state, a cornerstone of the rule of law itself. The
Attorney General is fully entitled to insist on the proper limits of judicial
authority, but he is wrong to stigmatise judicial decision-making as in
some way undemocratic.
On 25 July 2006 the Prime Minister commissioned a review of the
Human Rights Act – although, as with not a few Blairite initiatives, words
do not appear to have been followed by prompt action. It left untouched the
substance of the Act and merely counselled against its overenthusiastic use.
Thirdly, in the course of rejecting a challenge based on the nuances of the
Parliament Acts of 1911 and 1949 to legislation banning hunting with
hounds, two of the Law Lords hinted that in extreme circumstances they
would refuse to give effect to legislation which offended (in their view) basic
constitutional values, reflecting a philosophy of judicial authority last articulated by Sir Edward Coke in the seventeenth century.76 Lord Steyn said:
The supremacy of Parliament is still the general principle of our constitution.
It is a construct of the common law. The judges created this principle. If that
is so, it is not unthinkable that circumstances could arise where the courts
may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish
judicial review or the ordinary role of the courts, the Appellate Committee of
the House of Lords or a new Supreme Court may have to consider whether
this is a constitutional fundamental which even a sovereign Parliament
acting at the behest of a complaisant House of Commons cannot abolish.
These dicta represented a high-water mark in the development of judicial review prompted by a variety of factors, but, most relevantly for
present purposes, by a reaction against an ever more intrusive state
and an imbalance of political forces where (as during the Thatcher
era) one party enjoyed such numerical supremacy in the House of
Commons as to render MPs effectively unable to provide redress for
citizens’ grievances.77 The judiciary at the same time revivified the
76 R (Jackson) v. Attorney General (HL(E)) [2006] 1 AC 262 at 302–3.
77 Lord Woolf ‘Judicial Review – The Tensions Between the Execution and the Judiciary, Law
Quarterly Review, 118, 1998: 579.
ancient tort of misfeasance in public office;78 developed the concept of
exemplary damages for abuse of public power;79 formulated a principle
of legality holding that not only ambiguous but general words were
incompetent to infringe an existing constitutional principle;80 while
beating a measured retreat from the rule in Pepper v. Hart 81 which had
allowed them to use, in strictly limited circumstances, ministerial statements as an aid to the construction of statutory provisions, but had
involved indirectly an albeit modest qualification of their independent
role as interpreters. Lord Irvine had indeed anticipated the possibility
that the judges might seek to subvert the Blair agenda. In a lecture given
in 1996 he inveighed against judicial supremacism,82 but without noticeable impact.83
The law developed too in a subterranean way, uninfluenced by the
political agenda. The judges continued, indeed completed, the journey
away from a literal and towards a purposive and contextual construction
of contracts84 and statutes;85 they conceived the technique of prospective
overruling of earlier decisions;86 and they eroded the boundaries between
domestic law and international law.87 They expanded the boundaries of
negligence to embrace the performance by public authorities of statutory
functions88 and revoked the immunity of advocates from suits for negligence.89 They also promoted equality of the sexes in the distribution of
assets on divorce.90
78 Three Rivers DC v. Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1.
79 Kuddus v . Chief Constable of Leicester Constabulary [2002] 2 AC 122.
80 R v. Secretary of State for the Home Department ex p Pierson [1998] AC 539, 575 per Lord
Browne-Wilkinson; R v. Secretary of State for the Home Department ex p. Simms [2002] 2
AC 115, 131 per Lord Hoffmann.
81 [1993] AC 573.
82 Lord Irvine of Lairg, ‘Judges and Decision-Makers. The Theory and Practice of Judicial
Review’, ch. 9 in Human Rights, Constitutional Law and the Development of the English
Legal System (London: Hart, 2004), at p. 158.
83 I have already mentioned examples in the context of a discussion of the Prime Minister’s
own thinking and of the demise of Lord Irvine; for other examples see Lord Lloyd of
Berwick, ‘The Judges and the Executive – Have the Goalposts Been Moved?’, Denning
Lecture 2005, in Denning Law Journal, 2006: 79.
84 ICS v. West Bromwich Building Society [1998] 1 WLR 896.
85 Inland Revenue Commissions v. McGuckian [1997] BTC 346.
86 Re Spectrum Plus Ltd 2005 UKHL 41, [2005] 3 WLR 58.
87 See e.g. R (on the application of Al Skreini v. Secretary of State for Europe and
Commonwealth Affairs) [2006] EWHC Cir. 1279.
88 Barret v. Enfield London Borough Council [2001] 2 AC 550. Phelps v. Hillingdon London
Borough Council [2001] 2 AC 619.
89 Arthur J. S. Hall v. Simons [2002] 1 AC 615.
90 McFarlane v. McFarlane [2006] 2 AC 618: and the much reported Charman case in May
2007.
In one sphere they could indeed claim to have prompted legislative
reform. In denying redress to a young man who in defiance of a council
warning notice dived into a shallow lake and broke his neck, Lord
Hobhouse of Woodborough uttered some trenchant words which91
found echoes in the government’s subsequent Compensation Act 2006,
mandating courts to take account of the possible deterrent effect of
imposing liability for negligence, and which itself spawned in 2007 rules
for the compulsory registration of claims-handling companies.
The Ministry of Justice
/> In a final effort to embed his legacy the Prime Minister announced that a
Ministry of Justice was to be established on 9 May 2007 to bring together
Her Majesty’s Courts Service, the Tribunals Service and the current
responsibilities of the DCA with the National Offender Management
Service – including criminal law and sentencing policy. The Office of
Criminal Justice Reform (OCJR) and the Ministry of Justice will
have complete departmental oversight of civil and family justice as
well as key elements of constitutional and rights-based policy such as
data protection and the HRA. A simultaneous circular letter from the
Lord Chancellor stated that the Ministry of Justice would strengthen
further the already strong judicial–executive relationship set out in the
concordat.
But despite the New Labour newspeak with which this initiative was
proclaimed, senior judges, who once more were not consulted in
advance, were concerned that stronger safeguards to ensure their independence were required under the proposed regime. They feared that
unless the budget for the courts was ring-fenced, it would be consumed
by the demands of the prisons and the probation service; that they would
be forced to tailor sentences according to available prison space; and that
the Minister of Justice (the Lord Chancellor) would face judicial review
91 In Tomlinson v. Congleton Borough Council [2004] 1 AC 46 at p. 97:
In truth, the arguments for the claimant have involved an attack upon the liberties
of the citizen which should not be countenanced. They attack the liberty of the individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and the
liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of
this country. The pursuit of an unrestrained culture of blame and compensation has
many evil consequences and one is certainly the interference with the liberty of the
citizen.
proceedings before the very judges whose budget he controls,92 creating
an unseemly picture of conflict of interest.
The themes
Ad hoc as many of changes in the architecture of the law during the
period appeared to be, there was an underlying rationale, reflected in
Lord Hewart’s oft-misquoted dictum, ‘justice must not only be done but
must manifestly and undoubtedly be seen to be done’, betokening an
increased sensitivity to the appearance, as well as the actuality, of justice.
This underlay the demise of the Lord Chancellor as judge, the projected
demise of the Law Lords, and the threat to the traditional role of the
Attorney-General, as well as the insistence that the professions (if not, in
Adam Smith’s phrase, conspiracies against the laity, not their natural servants) could not independently police their own.
The editors of the ninth edition of Walker and Walker’s English Legal
System 93 wrote, ‘The last 7 years since the 8th Edition of this book have
seen wholesale changes and reform in virtually every aspect of the Legal
System.’ The tenth edition will be able to identify yet further change.
Whether the changes are improvements time alone, and as always, will
tell. For at the end of the three Blair administrations the same issues dominated the legal agenda as at the start, with the same inherent tensions of
continuity against modernisation, merit against diversity, justice against
economy.94 Triangulation has provided no final answers.
The future
The changes made to the system during the Blair era are not likely to
be reversed. Powers separated will not be conjoined. While the litigation
culture still remains essentially adversarial, with outcomes dependent upon the dedication of resources and the forensic performance
of counsel, there will continue to be a move away from a court-based
system of dispute resolution and the traditional emphasis on oral
92 Lord Woolf ,‘Judicial Independence not Judicial Isolation’, Clifford Chance Lecture at the
University of Essex, April 2007. Gibb, ‘Is This an Unseemly Rush to Change?’; David
Pannick: ‘Preventing the Ministry of Justice Causing Injustice’, The Times Law, 8 May
2002.
93 Published by Oxford University Press, April 2005.
94 Lord Phillips of Worth Matravers LCJ, in his Lecture to the Judicial Studies Board, 2007,
was the senior, but not the solitary voice, who saw a legal system, if not starved of resources
at any rate undernourished.
advocacy.95 New forms of dispute resolution will increasingly supplant
it, whether it be via new administrative tribunals, proliferating ombudsmen (in both the public and private sectors) or mediation and its cousins.
The civil service will continue to encroach upon judicial territory. It may
be that a lighter touch of regulation will find favour with a Conservative
administration; but the laicisation of the administration of the law will
prove to be an irreversible trend.
As Mr Blair departed the scene with a controversial Ministry of Justice
in its first weeks of operation, a Legal Services Bill still to reach the statute
book, and, from their respective perspectives, judges, barristers and solicitors up in arms about both, he may console himself that no one could
accuse him of undue favouritism to the profession of which he remains a
member.
95 For an elegiac expression of regret Michael Beloff QC, ‘Advocacy. A Craft under Threat’,
the Espeland Lecture 2003, Oslo.
15
Crime and penal policy
Introduction: Tougher than the rest?
Crime and crime control have been pivotal to the New Labour project
from the outset. The ‘Blair effect’ on crime policy began not in 1997 when
Tony Blair became Prime Minister, nor with his 1994 election to the
Labour Party leadership, but in 1992 when John Smith appointed him
Shadow Home Secretary.
The significance of Blair’s impact can only be appreciated in the longterm context of the post-Second World War politics of law and order.
Crime had not been a partisan political issue until the early 1970s,1
although specific aspects, notably capital punishment, were always
controversial.2 The politicisation of law and order became marked
during the late 1970s, in the run-up to Margaret Thatcher’s 1979
general election victory. Her sharp attacks on Labour’s alleged ‘softness’
in relation to crime and disorder gained a huge electoral dividend:
opinion polls show that no other policy put Labour so far behind the
Conservatives.3
In the late 1980s hints emerged of a cooling of partisan conflict about
crime, as both parties sought to develop more pragmatic policies. Labour
realised that some of their traditional approaches (such as commitment to a strong civil libertarian stance, and to addressing the deep
causes of crime) were electoral liabilities despite their intrinsic merits.
For their part the Conservatives – embarrassed by unprecedented
increases in crime and disorder – explored more effective crime prevention
policies, rather than just ratcheting up police resources and
11 David Downes and Rod Morgan, ‘No Turning Back: The Politics of Law and Order into
the Millennium’, in M. Maguire, R. Morgan and R. Reiner (eds.), The Oxford Handbook of
Criminology 4th edn (Oxford: Oxford University Press, 2007), pp. 201–40.
12 T. Morris, Crime and Criminal Justice Since 1945 (Oxford: Blackwell, 1989); M. Ryan, Penal
Policy and Political Culture in England and Wales (Winchester: Waterside Press, 2003).
13 Downes and Morgan, ‘No Turning Back’, p. 204.
punishment.4 This pragmatic consensus was short-lived. It ended in
1992, as Tony Blair, newly appointed Shadow Home Secretary, began to
capture the law-and-order issue from the Conservatives, and Michael
Howard (who became Home Secretary in 1993) vigorously defended this
Tory fiefdom.5
The key turning point came in 1992/3 with Blair’s pledge to be ‘tough
on crime, tough on the causes of crime’.6 Ironically, this legendary
soundbite may have been ‘borrowed’ from its original author Gordon
Brown.7 But whatever its provenance, it resonated with the national soulsearching about crime and moral decline following the tragic murder of
the Liverpool toddler James Bulger in February 1993. The beauty of the
slogan was to hit all bases at once, balancing the populist desire for punitiveness with effective security against victimisation. Its ambiguities
allowed people to see what they wanted. Did ‘tough on crime’ mean evidence-led crime prevention that worked, or harsh punishment of criminals? Was ‘tough on the causes of crime’ a nod to the traditional social
democratic idea that crime had deep social root causes? Not according to
recent exchanges between Blair and David Cameron over gun crime. The
Tory leader blamed a ‘badly broken’ society (forgetting how much of the
damage was due to his predecessor, Margaret Thatcher, who had denied
that there was such a thing as society). Tony Blair saw the problem as
having very specific, limited causes, requiring policing solutions. But the
ultimate political value of Blair’s soundbite lay in its sub-text: a double
whammy of toughness locked into one short, sharp sentence, cutting at a
stroke the accusation that Labour was ‘soft and flabby on crime’ (in the