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AN ARTICLE by Peter Scrafton FIRRV, FCIArb, MRSA(Hon) Solicitor (Non-Practising)

August 2018.

I have written many pieces over the past few years, dealing with developments in the law, more or less when they occur (publication dates permitting!) We have statutes, regulations, Orders in Council, byelaws and judicial decisions – not to mention all of the European material. This time, I am going to try to put together, albeit in general terms, something of an explanation of where they come from, and how they interact.

In the beginning, it was good to be the King (pace Mel Brooks) as what the king said, went. Simon de Montfort started what has become Parliament; but broadly, the King, with or without his Council, ruled the roost. Henry II, thought by some to have been the only true genius to have sat on the throne, sought to have his laws observed and enforced, universally, across his realm, in place of what might be called local custom and practice, in which he succeeded almost completely, although I believe that “… the usual quarter days” referred to in leases can still mean different dates in certain places. To enforce his will, Henry ordered his judges to travel round the country, making the Sheriffs personally responsible for their safety: they enforced the king’s laws, at what became known as the “Assizes” (sittings) and also passed on the news of current and recent events. It is Henry’s death in 1189 which is, in law, “time immemorial”.

Although the judges (sitting alone at assizes) heard cases on circuit, judgment was given in Westminster by a bench of three judges, and decisions were thereby harmonised. They started recording those judgments, initially in an elementary way, the first known report being of The Innkeeper’s Case, by Sir John Knyvet, who was Chief Justice of the King's Bench from 1365-1372, and, although not a cleric, Lord Chancellor of England from 1372-1377. Churchmen sitting judicially applied canon law, from which the principles of equity descend – less harsh than those of the common law. As monarchs travelled a great deal, they delegated their function of hearing grievances against authority to the judges; and from there we have judicial review.

In this way, we see the emergence of two of what I have previously described as the three legs of the stable stool of the modern, democratic state, namely the executive, the judiciary, and the legislature. The third leg, the legislature, was the last to arrive. Each leg has to be independent, but without the presence of all three, taking equal strain, the stool will become unstable. Such instability could allow the state to fall into anarchy.

There must, therefore, be a system of checks and balances, which seek to ensure that each of the three branches of government is independent of the control of the other two, but at the same time, it cannot operate on its own, without the other two. Henry VIII was a strong king living in very unstable times, and he controlled the legislature (i.e. Statute of Sewers 1531 and Statute of Proclamations 1539 – see Report by the Committee on Ministers’ Powers [the Donoughmore Committee] HMSO, London, 1932) and the judiciary. In many instances, although he consulted Parliament, in effect, he governed, by decree. The Stuarts lost control of Parliament in the Civil Wars, and of the judiciary, finally in the Act of Settlement (1701), thus separating the three “legs” of the constitution.

It was formerly thought that Henry VIII’s power of government, in effect, by the executive, had declined almost out of existence, but this view has been exposed as erroneous. In a report of the Scrutiny of Legislation Committee of Queensland, published in January 1997 and containing an erudite review of the incidence of “Henry VIII clauses”, at paragraphs 1.17-1.20, British cabinet Ministers are quoted as deprecating what seemed to be a rise in the number of such clauses enacted since the report of the Donoughmore Committee.

There is also the example of the Local Government Finance Act 1988, in which the Thatcher government overthrew the centuries-old system of local government finance (even though this process may be thought to have started with the Sewers Act 1531) and replaced it with an act which gave extremely wide powers to the executive to govern by regulations, which regulations could be and have been changed, at pleasure. Some of these regulations may have been helpful in promoting sound and impartial legislation, but others were far more controversial, restricting, for example, which activities local authorities could undertake, lawfully.

The then Lord Chief Justice, Lord Judge, commented in the strongest terms against the practice in a speech to the Lord Mayor’s dinner for the Judiciary on 13th July 2010. He warns that even William Pitt declared that such clauses would always be necessary; and says that, in his, view, the giving to Parliament of the option of affirmative or negative resolutions, is not sufficient, and he warns of the constitutional dangers, in the long term, of bringing such clauses into law.

Lord Judge was sounding a loud alarm bell, expressing the unequivocal view, and giving examples, of what he felt was the woeful inadequacy of the parliamentary system to regulate what the Lord Chief Justice clearly saw as the creeping arrogation to itself by the executive of the powers of the legislature.

The Delegated Powers and Regulatory Reform Committee is appointed by the House of Lords in each session with terms of reference "to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate level of parliamentary scrutiny; to report on documents and draft orders laid before Parliament under the Regulatory Reform Act 2001; and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments."

There is evidence in relation to recent non-domestic rating regulations (Motion of Regret, House of Lords 1st February 2018) that Whitehall may be endeavouring to sidestep scrutiny of such committees by failing to submit drafts in time for consideration, and of course the Brexit legislation contains a number of Henry VIII’s provisions, some of which may have positive effect, but all of which should have had detailed scrutiny by Parliament. Did they, though?

There are “pros and cons” to secondary legislation, but there is little reference to powers of control by a legislature. It is difficult, therefore, to disagree with what Lord Judge seems to be saying, namely that the existing safeguards are inadequate, and that the potential for misuse remains present, in the absence of detailed parliamentary scrutiny of all proposed provisions. So now you know what I, and others, get up to when sitting with Ministers or officials, or in Parliament itself (as advisers and spectators only, of course): we are trying to make sure that draft legislation is clear, coherent and addresses the matters and mischiefs which it is intended to remedy, in a non-partisan way.

My personal and professional preference is to work in the House of Lords, as peers tend to pay attention and listen, can be persuaded and can still get things done. As for the other place, I fall back, as so often, on W.S. Gilbert, who, in “Iolanthe” has Private Willis express the view:-

When in that House MPs divide.

If they’ve a brain and cerebellum too,

They’ve got to leave that brain outside

And vote just as their leaders tell ‘em to.

But then the prospect of a lot of dull MPs in close proximity.

All thinking for themselves, is what no man can face with equanimity.

Enough said - nothing has changed since Victorian times!

What, then, of the judges? They are sometimes criticised by politicians for making law; and sometimes they do, but generally they interpret what Parliament has provided. They tell us what the law is, overrule mistakes (as in the recent cases of the Lands Chamber in correcting VT decisions to strike out appeals) point out omissions from legislation (as in Monk and Mazars) and misinterpretations by the Executive (as in R (TP and AR) –v- Secretary of State for Work and Pensions and Another decided on 14th June). Parliament is repealing the “staircase tax” and the Secretary of State has been invited to reconsider the application of Universal Credit.

Hopefully, then, you might feel disposed to start to think (if you did not already do so) that the lawyers have a role to play in trying to keep the Executive in check (curbing the late King Henry) and in trying to make as sure as they can, that the law is as clear as may be once the parliamentary draftsman has finished with it.

Peter Scrafton

©J.P. Scrafton, 2018

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