Statutes of Liberties?

Much of the story of the last ten years of government can be told in the Acts of Parliament that were passed. As it neared its end the statistics of the Tony Blair premiership began to be totted up; and the conclusion some critics reached was that he was a frenetic legislator.

A recent study by Sweet & Maxwell shows that more than 2,600 new laws were passed on average each year; an increase of 22 per cent on the previous decade. Last year the Liberal Democrat Home Affairs spokesperson, Nick Clegg, publicised figures showing that more than 3,000 new criminal offences had been created since 1997: a new one for every day spent in office, double the rate of the previous Conservative government. They reportedly included the prohibition of selling grey squirrels, impersonating a traffic warden, offering Air Traffic Control services without a licence, and creating a nuclear explosion.

Observers such as the journalist Henry Porter have detected a sinister side to this tendency and concluded that the two-and-a-half Blair parliaments have been marked by an accelerated dismantling of civil liberties, unchecked by an oblivious legislature. Others have suggested that the government has become prone to introducing legislation which achieves nothing and can be a dangerous distraction from important work — for instance the draft Climate Change Bill.

Is it possible to reach broader conclusions about the Blair era based on the Acts of Parliament he saw onto the statute book? First certain qualifications must be made. The Sweet & Maxwell figure comprises overwhelmingly (about 98 per cent) secondary legislation; and it does not include the thousands of measures of European origin that have come into force.

Behind the overall tendency towards growth the quantity of primary law — with which I am concerned here — is generally speaking in long-term decline. Against a peak of 98 for 1964 the total annual number of Acts of Parliament fell to 38 by 2004. This trend suggests that Parliament should keep under close review the quality of its oversight of secondary legislation, a subject often neglected in favour of discussions of how best to scrutinise bills.

But while they may be dwindling, Acts of Parliament are expanding too. The number of pages of primary legislation was 1,340 across 83 Acts for 1965; the respective figures rose to 4,073 pages and 45 Acts by 2003. One reason for these combined trajectories may be that Whitehall departments have become more effective at cramming as many measures as possible into the openings made available to them in the tight parliamentary timetable; and we live in a more regulated, codified, litigious society in which everything has to be fireproof.

What did all these reams of clauses do? The department which, along with the Treasury, has tended to introduce the most bills has been the Home Office, giving some support to the thesis of a government obsessively pursuing law and order measures to the detriment of civil and political liberties. Defenders of Blair’s record will point out that early in the period the Human Rights Act 1998 was passed incorporating the European Convention on Human Rights into domestic law and providing greater protection for personal freedom. Yet in the same year the government displayed another tendency — for the loosening of due process. The Crime and Disorder Act 1998 was the basis for Anti-Social Behaviour Orders which fused civil and criminal procedures with a view to preventing intimidation, harassment and distress.

This side to the Blair governments became more marked after 9/11. The Terrorism Act 2000 was supposed to be the definitive measure of its sort, drafted to take into account international and religiously associated terrorism as well as that associated with the Irish Troubles. But after the Al-Qaeda attacks on the US the government introduced more stringent security measures.

The Anti-Terrorism, Crime and Security Act 2001 provided for the detention without charge of foreign terrorist suspects. After an unfavourable House of Lords judgement (under the Human Rights Act) in 2004, the measure was withdrawn and replaced with the use of Control Orders under the Prevention of Terrorism Act 2005. The Criminal Justice Act 2003 provided for trial without jury in certain circumstances.

After 7/7 the government attempted, under what became the Terrorism Act 2006, to extend the period of pre-charge detention of terrorist suspects from 14 to 90 days. But it was prevented by a backbench rebellion — the first such defeat inflicted on Blair, though agreement was reached on the still-sizeable total of 28 days.

This event leads us to another feature of the Blair premiership: the controversy some of his policies generated within the ranks of his own party. A particular source of contention were his attempts to ‘modernise’ the welfare state and public services. The Social Security Act 1998 had to withstand a rebellion against its provision for a power to reduce lone parent benefit, as did the Welfare Reform and Pensions Act 1999 for its introduction of means-testing.

In the second term there were considerable revolts against Foundation Trust hospitals (in the Health and Social Care [Community Health and Standards] Act 2003); and variable university tuition fees (Higher Education Act 2004).

Some of Blair’s legislation gave force to long-pursued Labour objectives: for instance the Minimum Wage Act 1998 and (however reluctant he was) the Hunting Act 2004. So too did the devolution programme enacted for Scotland and Wales by the Scotland Act 1998 and the Government of Wales Act 1998. The Employment Relations Act 1999 introduced a procedure for compelling employers to recognise trades unions in certain circumstances.

Measures in the Employment Act 2002 included the introduction of two weeks paid paternity leave and the extension of maternity pay from eighteen to twenty-six weeks. The Equality Act 2006 strengthened protections against discrimination on a basis of religion or sexual orientation, and established a single Equality and Human Rights Commission.

While these provisions may have enjoyed wide support within Labour (though often they did not go far enough for some) Tony Blair’s parliamentary party proved to be less obedient than that of any prime minister in the democratic era.

Yet the largest rebellions of all were provoked not by a proposed Act of Parliament but a proposed act of war, with the two votes held on his policy towards Iraq in February and March 2003. Parliament was consulted here at the discretion of the government, not because its consent was strictly required. Military conflict — along with swathes of other types of foreign policy — are conducted under the Royal Prerogative, outside the bounds of statute.

Consequently primary law had little to do with the activist international approach that characterised the Blair period (though the ‘ethical dimension’ to foreign policy found some legislative expression, in the Export Control Act 2002 and International Development Act 2002).

Blair’s international approach — especially in Iraq — focused attention on what many regard as anomalies in the British system of government such as the Prerogative. Partly as a consequence the most important initial Bill his successor Gordon Brown will bring forward will be one containing a major package of constitutional reforms. Brown will be building on a process begun under Blair, though some would say it had stalled.

Laws referred to above gave expression to devolution; while the House of Lords Act 1999 began the process of excluding all hereditary peers from the Upper Chamber. Freedom of Information Act 2000 established a statutory right to apply for official information (though subject to many exemptions and a ministerial veto on disclosure); Local Government Act 2000 reshaped the framework for local authority decision-making; Constitutional Reform Act 2005 modified the office of Lord Chancellor (because abolishing it outright proved too complicated) and provided the basis for a Supreme Court. There were many other Acts of substantial constitutional implication and this process of change has now been given new impetus.

When he first arrived at the Treasury Gordon Brown created a dramatic impact through his measures for independent, transparent interest rate decisions which were included in the Bank of England Act 1998. He is now trying to repeat the trick.

Andrew Blick is policy officer of Democratic Audit.