The Second annual Boydell Lecture was delivered on 8 May 2009 by Dominic Grieve QC MP, Shadow Justice Secretary. It had the title Resuscitating Justice: Law or Administration? In a wide ranging address, Mr Grieve examined the ways in which the root principle of the availability of justice and government constrained by the rule of law was, he suggested, being undermined by the provision of administrative solutions.
He criticised the mass proliferation of administrative penalties:
At one end of the spectrum, it seems that shoplifters are simply being taxed for their crimes...And those who engage in violence and disorder, without causing more serious injury, will be able to buy off the criminal justice system.
At the other end of the spectrum, law-abiding citizens are being fined for dropping a biodegradable apple core...
He reminded his audience of what Sir Robert Peel, the founder of the Metropolitan Police had said:
Police should always direct their action strictly towards their functions, and never appear to usurp the powers of the judiciary.
On Marper v UK, he observed:
The current very limited response by the government ... is, I think, a telling indicator of the extent to which ethics in government over the operation of criminal law have been undermined by administrative expediency.
On access to justice he said:
The impact of the legal aid reforms has left those firms who provide a lifeline to the most vulnerable, whether in family or mental health cases, struggling to stay in business, at a time when the government is wasting a total of over £130 million on an entirely unnecessary set of new premises for the equally unnecessary Supreme Court, with a quadrupling of subsequent running costs.
He observed of the Planning Inspectorate that it:
...has been changed from an aid to the Secretary of State in resolving the balancing of competing interests into an independent judicial body taking administrative decisions.
On the Equality Bill he said:
...there are proposals not just for employment tribunals deciding discrimination cases, but also for giving wider policy directions to companies based on discrete findings in any one case. Seeing that the bill promotes positive discrimination in the work place by allowing gender and ethnicity to be a factor in recruitment decisions, it seems to me that we are beginning to use the justice system for the purposes of social engineering.
Following a detailed examination of the Damian Green affair he concluded:
Far from creating a clear separation of politics from the system of justice, we have wrecked the system of ministerial accountability and responsibility for its fair administration and the conventions which underlay it, without establishing any effective substitutes, whether judicial or political or administrative. Nor, I believe, can politics be removed from such decisions which are by their nature political as they involve action by the state and its agencies.
On solutions he said:
- ...we must avoid the political bidding war that has developed with Labour Ministers engaging in eye-catching gimmicks and blood-curdling sound bytes but all too often ineffective or irrelevant solutions to the problems they purport to address.
- We need to look seriously at the tendency to permanently criminalise relative trivial misbehaviour in our society that forty years ago would have been dealt with informally by responsible adults within communities...
- We want to restore to the police the discretion they enjoyed in deciding when formal intervention is needed by removing the perverse incentives they have for arresting people.
- ...a major priority for an incoming Conservative administration will be providing the additional prison capacity of 5000 places, above the government's figure, which can deliver a much more constructive prison regime including after care to improve rehabilitation and reduce re-offending.
- ...we are conducting a review into the courts system with a view to maximising capacity available particularly in the criminal estate.
On the ECHR and consideration of how it can be replaced with a home grown bill of rights, he said:
Part of our work is identifying domestic rights and freedoms unprotected by the ECHR at present but meriting protection. Both the right to trial by jury and the placing of strict limits on administrative penalties without due process of law are under consideration. The intention behind the project is to try to achieve a statute that will both protect Convention rights, and in particular absolute rights under the convention, rigorously while seeking by better definition clauses, where these are possible, in balancing competing rights and reducing rights inflation, which is more often caused by the interpretation of public authorities than by the courts.
To go to Dominc Grieve QC's website please go to www.dominicgrieve.org.uk.