Out with the Old, in with the New
After months of uncertainty, Gordon Brown is finally installed in Number 10, and it’s all change for the legal profession. In place of the Department for Constitutional Affairs, we now have a new Justice Ministry. I wrote in this paper in 2003 about the surprise abolition by Tony Blair of the office of Lord Chancellor, a decision which was immediately reversed following a minor public outcry. The Minister of Justice will be responsible, as his predecessors were, for the courts and constitutional affairs, but will also run the Prison and Probation Services, which have previously been the preserve of the Home Office. This combination of roles has been seen by many lawyers as a dangerous further move in the politicisation of the legal system.
How prison overcrowding is being dealt with is an obvious example of the problem. The government’s answer is to expect judges to incarcerate fewer criminals or release others rather than build more prisons. There is obvious room for at least perceived conflict where both prisons and the funding of the judiciary and courts are under the same umbrella. Things have not been improved by the indecent haste, lack of consultation and consideration that preceded this change.
The above changes were made under the previous regime and our new government now has a fresh opportunity to review the law-making process. In the now, somewhat distant, past Parliament considered major proposed legislation in detail and, after debate, voted on this in the House of Commons. Over the years, this has changed dramatically and now the vast majority of laws are made by ‘delegated legislation’, where a simple Act of Parliament gives ministers the power to decide the detail. This is how it is possible for ministers to announce very substantial changes (such as the abolition of the role of Lord Chancellor mentioned above) with little or no warning, adequate consultation or thought. The Prime Minister seems to have indicated that he would like to give power back to the House of Commons which has been ignored for too long.
The increased use of delegated legislation has also allowed the present unending stream of new laws to be passed at such a pace – in Tony Blair’s ten years as Prime Minister, an average of 2685 new laws have been passed each year!
Lawyers are often blamed for bad laws. We don’t make them, that is the job of politicians. Our job is to advise as to how they affect you. From our point of view, and probably yours, more law does not necessarily mean better law.
For further information contact Ralph Court by telephone on 01423 566666 or by email ralph.court@raworths.co.uk. Ralph Court is a partner and head of the commercial litigation unit at Raworths LLP.
