In many legislatures, countries have tried to foster a sense of collegiality amongst their legislators through the architecture of their legislative chamber, like the European Parliament’s circle or the Scottish Parliament’s horseshoe, adopting styles that reflect unity rather than fostering division.
This is not the case in the UK. Instead we take an antagonistic approach, with government benches directly facing-separated by two sword lengths – those of the opposition. MPs stare into each others’ eyes, the floor of the house a constant physical reminder of the ideological gulf that lies between them. This layout reflects the ‘winner takes all’ philosophy that pervades British politics, with the parties in opposition expected to challenge and scrutinise the government through the cut and thrust of debate.
For this philosophy to bear fruit, however, parliament must be allowed to play a role in the process of governing. This is not something that Boris Johnson’s government has been eager to grant. Instead, we have seen parliament reduced to the role of bystander, watching mutely and ineffectually from the sidelines, while the government dashes from pillar to post, unchecked and unscrutinised. Not all of these unscrutinised decisions are catastrophes like this summer’s exam results; some are notable successes, like Rishi Sunak’s ‘eat out to help out’ scheme, and the extension of the furlough to October.
Admittedly, the exigencies of the pandemic, coupled with the summer recess, meant that the government had to make some decisions on the fly. Convening parliament to decide if Manchester needed to be put into lockdown, or if Greece should have been taken off the no-fly list, would have been farcical, a government refusing to assume the mantle of its responsibilities. What is concerning is that the government is now extending its authority, under the guise of the coronavirus, into matters that should be for parliament, not for a ministry on Whitehall.
Foremost among these is the government’s decision, announced this Sunday evening, to add two months to the period that accused persons can be held in custody before trial – technically known as the custody time limit. This means that for someone charged with a criminal offence and denied bail, they can be locked up and treated like a convicted prisoner for eight months – almost a year behind bars before they’ve even had the chance to put their defence to a jury. At the moment, this means facing months of confinement, with little chance of exercise or even companionship, with most prisons forcing prisoners to stay in their cells for up to twenty hours a day- cells that are already in a dismal state, as the Howard League reports show again and again.
Ostensibly, this is necessary because the coronavirus has brought the court system crashing down. Jury trials were unable to proceed during the lockdown, while the need for social-distancing means that conducting trials in ordinary courtrooms is fraught with difficulty, and so court capacity is heavily reduced. All of this has resulted in trials being pushed further and further back, with criminal trials now being listed for 2022. It is these delays, according to the Lord Chancellor, Robert Buckland, that raise the risk of potentially dangerous criminals being released upon the expiry of the CTL, and so warrant the extension to the time limit to ‘keep victims and the public safe’.
If this was a genuine emergency, and there had been a sudden delay in cases over the past six months, it might be possible to consider this an unfortunate necessity. But it is not. The crisis in the Crown Courts has been growing for years, with courts being sold off to raise money for the Treasury, while courts still supposedly in use stand empty, with the government unwilling to pay – or recruit – enough judges to hear all the cases. Couple this with police recruitment being too low to efficiently investigate and process cases, let alone considering the state of legal aid, and you have a justice system on the brink of collapse.
In this context, the cries of ‘public safety’ from the Lord Chancellor ring hollow, with the pandemic merely tipping the system over the cliff and onto the rocks below. It is a cowardly decision, with the government preferring to invert a foundational principle of justice – the presumption of innocence – rather than properly fund the justice system. The fact that Buckland announced an £80m plan to ‘help the courts’ recover, including hiring 1,600 more staff, is meagre compensation for a decade of parsimony.
What makes this all the more invidious is that the government should have been forced to account for these failings. By making the change through secondary legislation, there will be little opportunity for meaningful scrutiny of the decision from the opposition, with the Lord Chancellor able, in essence, to unilaterally extend the period of time that those accused of trial are to be detained for. Such power is more reminiscent of a Tudor monarch than of a 21st century parliamentary democracy. Members of the opposition should have had the opportunity to scrutinise this decision, forcing Buckland to acknowledge that the failings of the justice system have been obvious to everyone except the government for years, and that the extension of the CTL simply takes advantage of the fact that people accused of crimes are unpopular with the public, and curtailing their rights is the easy way out.
There is a time and a place for quick decisions, but too often now we are seeing a government that prefers to rule by decree than by consent. Throughout the lockdown, there were constant amendments to the Coronavirus legislation, diligently tracked by Adam Wagner, but ultimately impossible for anyone to meaningfully follow. Among these amendments was the decision by Matt Hancock, the Health Secretary, to criminalise public gatherings towards the end of August, an amendment that saw Piers Corbyn, the brother of the former Labour leader, fined £10,000. As Matthew Scott has said elsewhere, creating law in this way is ‘unprecedented and deeply disturbing’.
British governments with strong majorities are already almost omnipotent, able to pass almost anything they desire. However, this use of executive authority through secondary legislation empowers them further, allowing them to evade scrutiny, both from their own MPs and from the opposition. Few things illustrate this more starkly than the decision to extend pre-trial detention. Civil liberties should not be so easily brushed aside.