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Criminal Justice Act 1988

Why was it Introduced?

The Criminal Justice Act 1988 was introduced during the third term of Margaret Thatcher’s Conservative government, as part of a wider part of that government’s “law and order” agenda. This was an area in which the Conservative party was considered to have strong political capital, and legislating in furtherance of the political goal of being tough on crime formed the background to the introduction of this act. In particular, there were public concerns about increasing violent crime, in particular gun crime after the Hungerford massacre of 1987, which had led to the introduction of the Firearms Act 1988, knife crime and lenient sentencing. These considerations formed the political background to the passing of this piece of legislation with the Government hoping that legislation in this area would strengthen their record with regards law and order.

What was the aim of the Act?

In terms of the legal context of the Act, the Criminal Justice Act 1988 sought to increase the powers available to both the Courts and to the Attorney-General in order to strengthen the power of the state in criminal proceedings by increasing the ways and forms of evidence that could be given, including by making exception to the common-law established rule against hearsay evidence. This was intended to make convictions more likely in cases where witnesses could not be found but where an out of court statement had been made by the witness. Furthermore, changes to the way in which the evidence of children was to be given were made to attempt to ensure that child abusers were more likely to be convicted. The act was also designed to address public concerns over sentencing by allowing for sentences which were regarded as being unduly lenient by the Attorney-General to be “referred” to the Court of Appeal, where the Court of Appeal could then decide to extend or otherwise amend a sentence. Public concerns about rising violent crime figures, especially with regards knife-related crime, and about unduly lenient sentences being imposed on convicted offenders were sought to be addressed by the act by the introduction of a ban on “bladed articles”, and by strengthening the fines and sentences available to courts for firearms offences and for child abuse. The act also aimed to change the way in which imprisonment was considered by courts by the establishment of a criteria under which an offender could be granted a custodial sentence. Finally, the act aimed to remove some of the workload from the Crown Courts by re-classifying certain offences as being summary only offences.

What main changes did it make to the law?

The Criminal Justice Act 1988 allowed for the first time the Attorney-General, as advised by the Crown Prosecution Service (CPS), to refer sentences imposed by Courts which were regarded as being unduly lenient. This power was included in s36(1) of the Act, which for the first time allowed for the Attorney-General to refer cases for review to the Court of Appeal in the event that he or she felt that the sentence imposed was unduly lenient.

In addition, the Act sought to change the ways in which evidence could be adduced in Criminal Trials by altering the common law rule against hearsay by providing a statutory exception to the rule against hearsay evidence where the witness was unavailable or could not be found, under s23(2) of the Act. This made it easier for hearsay evidence to be adduced into criminal hearings when the requisite steps to locate the witness had been made but where they could still not be found, were ill or dead.

The rules on evidence in English law were also changed by the Act by making video recordings of the testimony of child witnesses in criminal cases under s32 admissible as evidence in chief, and by removing the requirement that children’s unsworn evidence be required to be corroborated by virtue of s34 of the Act.

Another key change of the Criminal Justice Act 1988 was the introduction of new offences under s139 of having an article with a blade or point in a public place and under s160 of the possession of an indecent image of a child. The Act also introduced supervision orders for young offenders in s128, and put the Criminal Injuries Compensation Scheme on a statutory footing under s108.

Other changes included the increase in the maximum levels of fines that were levied for certain offences such as for Common Assault, which was codified under s39 of the Act. The common-law offences of Common Assault and Battery were made summary offences under ss39-40 of the Act, and increases in sentences made in ss44-50.

Inquiries Act 2005

Why was it Introduced?

Public inquiries have long been part of the United Kingdom’s constitutional apparatus, and are acknowledged to play an important role in British public life and in ensuring accountability. They are often called for and used when it appears as though something has gone seriously wrong on either a societal or governmental level. Inquiries may be used to establish factual circumstances and chains of events, as well as to help determine accountability and to develop future public policy. However, there has traditionally been little statutory control over Public Inquiries. The Inquiries Act 2005 was introduced after public pressure and disquiet at the length and expense caused by the Saville Inquiry into the Bloody Sunday massacre, which took over 12 years to complete at a cost of £192m. It was felt that stronger ministerial control over the launching and scope of inquiries was needed to prevent such huge amounts of money and time being spent on future inquires.

What was the aim of the Act?

The aim of the Inquiries Act 2005 was to establish a statutory framework under which Public Inquiries were to be conducted on matters of public concern. In addition, it was intended to consolidate and re-affirm existing legislation and rules of evidence such as the Tribunals of Inquiry (Evidence) Act 1921 which it replaced. Under s1(1) Tribunals of Inquiry (Evidence) Act 1921 it was considered the role of both Houses of Parliament to establish whether or not an inquiry into a matter of public concern was required on a statutory basis. The Royal Prerogative could, however, be used to allow Ministers of the Crown to establish non-statutory inquiries. The Inquiries Act 2005 sought to allow Ministers to instigate inquiries, and to retain control over their process, the constitution and appointment of the panel of arbiters of fact and law, and control over the conclusion of the process in an attempt to ensure that future inquiries would not overrun to the same extent as the Saville Inquiry did.

It is important to note that whilst the Inquires Act 2005 consolidated the law with regards the process for the instigation of public inquiries launched on a statutory basis, this is non-exhaustive, and as a result, non-statutory inquiries remain capable of being instigated by any member of the public, body, or Parliament itself or a Minister under the use of the Prerogative.  However, for public inquiries launched under the provisions of the Act the main changes to the law are as follows.

What main changes did it make to the law?

Firstly, the Tribunals of Inquiry (Evidence) Act 1921 is repealed by the Act. As such, the Act is now the sole basis for statutory inquiries and these are now instigated by Ministers. Under s1(1) of the Act, a Minister may now cause an inquiry to be held under the act where it appears to him that particular events have caused, or are capable of causing public concern, or there is public concern that particular events may have occurred.

In addition, an important provision is s15 of the Act which empowers the Minister to convert non-statutory inquiries into statutory ones held under the scope of the Act, as long as the Minister deems suitable, and on the condition set out in s15(1)(c) that the person who caused the original inquiry to be launched. The Act sets out in s17, the statutory powers of the Chairman of the inquiry, including giving them the power to set the procedure and rules of the inquiry itself, and to require evidence to be given under oath. S21 allows for the Chairman to compel the production of documentary and oral evidence and the attendance of witnesses.

Perhaps the most important change made to the law is the Ministerial control given by s13 and s14 of the Act which allows a Minister to either suspend, or to end an inquiry by way of giving notice to the Chairman. If the Minister decides to end the inquiry then he must give reasons in writing under s14(4)(a). This provides for a ‘control’ mechanism in the event that an inquiry is proving overly expensive or time-consuming, but has been criticised for allowing a Minister too much latitude. In addition, there may be concerns that such powers be incompatible with the positive duty of the state to protect the right to life in Article 2(4) of the European Convention on Human Rights (ECHR), although this has not yet been judicially ruled upon at the time of writing. That said, the fact that the Act does allow the Chairman to compel witnesses and evidence is likely to mean that statutory inquiries under the Act are to be seen as preferable to non-statutory inquiries in cases where Article 2 ECHR is, or appears to be likely to be engaged.

Constitutional Reform and Governance Act 2010

Why was it Introduced?

The Constitutional Reform and Governance Act 2010 was introduced in the last few weeks of Gordon Brown’s Labour Government Premiership and was aimed at both codifying the law regarding the governance of the Civil Service and codifying the ratification of treaties by Parliament as part of the United Kingdom’s constitutional settlement. The act is in two parts. Part 1 deals with the governance of the Civil Service, whilst Part 2 concerns the statutory role of Parliament on the ratification of treaties.

What was the aim of the Act?

This piece of legislation was introduced for two main reasons. The first aim of the act was to provide a statutory basis for the management of the Civil Service by codifying and re-stating the rules regarding appointment, conduct and governance of the service. This was as a result of concerns over growing levels of over-politicisation of the Civil Service as a result of the increasing reliance placed by Ministers on special advisors, and senior civil servants. Before the passing of the Act, the governance of the Civil Service was largely uncodified and ruled primarily by constitutional conventions.

The second aim of the act was to codify and clarify the role of Parliament with regards the ratification of treaties. The UK is regarded as a dualist state in which treaty and international law are not automatically incorporated into U.K. law until ratified by Parliament. Until ratification therefore, provisions of treaties that have been signed by the U.K. have only limited domestic effect, and Parliament has traditionally had a role in creating the domestic legislation which implements the treaty.  According to the constitutional convention known as the “Ponsonby Rule” the Government, when requiring Parliament to ratify a treaty, was to lay the treaty provisions before Parliament for comment, debate and, if necessary, for domestic legislation to be passed or amended. If the treaty implementation did not require either a grant of public money or the amendment, repeal or introduction of domestic legislation however, Parliament was effectively limited in its ability to ratify or disapprove the proposed treaty. The second objective of the Constitutional Reform and Governance Act 2010 was to allow Parliament a statutory role in the ratification of treaty into U.K. law.

What main changes did it make to the law?

Part 1 of the Act concerns the governance of the Civil Service. S2 creates the Civil Service Commission, which deals and oversees the recruitment of civil servants. S3 gives the Minister for the Civil Service the statutory power to “manage” the Civil Service and, amongst other things, to make appointments. This is to be combined with the requirements of s10 of the Act which covers the selection and appointment of candidates to the civil service. For the first time it is required by statute that appointments be “on merit on the basis of fair and open competition”.

In addition to this new provision, another key change is made with s5 which requires the Minister to publish a Civil Service Code of Conduct which will form part of the terms and conditions of service of Civil Servants. This is an entirely new provision aimed at ensuring the accountability and transparency of civil servants.

Part 2 of the Act concerns the statutory role of Parliament in the ratification of treaties. For the first time, the Government is under a statutory duty to put before Parliament any treaty for ratification under s20(1)(a). This then gives Parliament 21 days under s21(1)(c) to ratify the treaty provision. Should this period expire without either House resolving that the treaty should not be ratified then the Government is entitled to ratify the treaty under s20(4). This means that if either of the Houses of Parliament intend that the treaty should not be ratified, then it cannot be so ratified.

Whilst this appears to be a major and important change in the law, it should be noted that the Act does not provide for any statutory obligation on Parliament to either hold a debate, nor a vote on the treaty. It may simply be that the 21-day period set down in s20(1)(a) expires without a debate in which event the treaty may be ratified by the Government. In fact, this appears to be a relatively common occurrence, especially considering the Government runs the timetable for Parliamentary debate, and Opposition Day debates are limited. The difference between the powers of Parliament under s20 of the Act and the Ponsonby Rules as a constitutional convention is now that Parliament may decide not to ratify a treaty even if it does not require domestic legislation to be amended in order to do so or not.

Scotland Act 1998

Why was it Introduced?

The historical and political context to the Scotland Act may be seen within the context of a rising Scottish nationalist sentiment in the 1990’s. As a result of this, and as a result of political pressure to allow the public to have a say on the issue, a referendum on the possible establishment of a Scottish Parliament was held in 1997. It resulted in a vote of 74% in favour for the establishment of a Scottish Parliament, and 63% of the vote in favour of that Parliament to have the power to vary the basic rate of income tax within Scotland. Some members of Tony Blair’s Labour Government considered that, the devolution of some powers to Scotland and the establishment of a Scottish Parliament would result in this growing sentiment being satisfied, and the case for complete independence and withdrawal from the Union ended. This was attempted and required to be completed within the UK’s accepted constitutional settlement, based on the supremacy of the Westminster Parliament.

What was the aim of the Act?

The aims of the Scotland Act were to further the process of devolution by the establishment of the Scottish Government, and the devolved Scottish Parliament, with the power to vary tax rates. This required the establishment of general elections within Scotland, and the delegation of powers and competencies to the new Scottish Government. The devolution of powers from Westminster to Scotland raised questions and concerns over whether the concept of Parliamentary supremacy was being undermined, and whether or not devolved power would ultimately lead to the Scottish Parliament being less willing to accept the doctrine of Westminster supremacy in the future. As a means of practically managing the transfer of devolved powers, all powers are deemed to be devolved and within the competency of the Scottish Parliament except for those “reserved” to Westminster which are included in Schedule 5 of the Act.

What main changes did it make to the law?

In summary, the main features of the Act are as follows. The Scottish Parliament is established by s1 of the Scotland Act 1998. s1(1) provides that “There shall be a Scottish Parliament”, and so establishes the devolved Scottish Parliament, whilst s2 of the Act provides for the establishment of general elections. Another key provision is s28 of the Act, which grants the Scottish Parliament the power to make laws which are to be known as Acts of the Scottish Parliament. The Scottish Parliament’s capability to set or vary the basic rate of income tax for Scottish ratepayers was included in s73 of the Act and now amended by the Scotland Act 2012. As a result of amendment made by the Scotland Act 2012, further devolved powers with regards taxation have been granted to the Scottish Parliament, and are now included in s80A of the Scotland Act 1998. This allows the Scottish Parliament to set a rate of income tax to be paid by Scottish taxpayers, and also to specify the taxes which the Scottish Parliament may make provision for in the exercise of their powers in s28.

It is important to note in s28(7) that this section however does not affect the power of the Parliament of the United Kingdom to make laws for, and affecting Scotland. This in essence ensures that the concept of Westminster supremacy remains intact. This is supported by the provisions of s29, which set out the legislative competence of the devolved Scottish Parliament, and which provides that matters outside of the competence will be “reserved matters” as provided for in Schedule 5 of the Act, any act that would form part of the law of a country or territory other than Scotland, is in breach of restrictions set out in Schedule 4 of the Act, or which are incompatible with convention rights or EU law. All other matters are therefore to be regarded as being within the competency of the Scottish Parliament. Schedule 4 ensures that the Act of Union 1707 remains a “reserved matter” thus ensuring the continued existence of the United Kingdom, and ensuring the Supremacy of the Parliament of the United Kingdom.

With regards the specific powers that are “reserved” to Westminster, these are set out in Part 1 of Schedule 5 as being; Constitutional matters, the foundation, registration and funding of political parties, foreign affairs, public service (the Civil Service), defence, and treason. Part 2 also specifically reserves fiscal matters, such as economic and monetary policy, coinage and legal tender, money laundering and listing rules. It is also clear from s30 of the Act that the Prerogative power remains with the Crown to make any Orders in Council to modify the list of reserved matters in Schedules 4 and 5.


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