Labour’s manifesto: the legal bits

Obviously all the parties’ manifestos will contain long lists of items many of which could end up as legislation. I want to focus though on some of the “pledges” that are of particular legal interest or significance. Starting with Labour’s manifesto, “A Future Fair for All“.

Of most interest to me are the constitutional changes Labour promises. First, they pledge that:

To further strengthen our democracy and renew our constitution, we will legislate for Fixed Term Parliaments and set up an All Party Commission to chart a course to a Written Constitution.

Anyone who reads this blog will know I’m opposed to written constitution for the UK. I doubt politicians realise how fundamentally this would change our politics for the worse – or, as I argued recently, how it’d put a stop to the politics of constitutional reform in this country. I may be in a very small minority, but for me, this pledge is a definite minus for Labour. I hope that, if they do get back in, the written constitution commission goes the way of the Jenkins commission on electoral reform, and meets with a complete ignoral.

I don’t see the point of fixed-term Parliaments, either, which is just another superficially modern-sounding whim. Would it mean that there could never be an early election – for instance, if a future Gordon Brown were to take over without a general election? Would the new PM be denied the option of seeking a new mandate? What if there were a hung Parliament and coalition government? Would it be impossible for a new election to be sought if the coalition collapsed and an entirely new one came into power? These are hard questions for the fixed-term Parliament campaigners – and it’s time attention were focused on them.

Next,

To ensure that every MP is supported by the majority of their constituents voting at each election, we will hold a referendum on introducing the Alternative Vote for elections to the House of Commons.

I’m not against this. I’d be concerned about proportional representation in the Commons (because of its tendency to produce coalition governments that are in effect unsackable by the people) but one of the attractions of AV is that it could make more people’s votes count without damaging our democracy. I think it’s right, too, for a major change to be put to the people.

Still on the constitution,

We will ensure that the hereditary principle is removed from the House of Lords. Further democratic reform to create a fully elected Second Chamber will then be achieved in stages. At the end of the next Parliament one third of the House of Lords will be elected; a further one third of members will be elected at the general election after that. Until the final stage, the representation of all groups should be maintained in equal proportions to now. We will consult widely on these proposals, and on an open-list proportional representation electoral system for the Second Chamber, before putting them to the people in a referendum.

I agree with the hereditaries being cleared out of the Lords – of course. It should have been done long ago. I’m less sure I’m in favour of an elected second chamber, for two reasons. First, because a more democratically legitimate chamber would compete with the Commons for power in a way that might be destablising – or even cause American-style logjam. Second, because the last thing we need is yet another load of identikit career politicians who are rally trying to get to the Commons. I worry that we might lose the expertise of Lords who’d never want to stand for election, but whose insight really helps the quality of national debate. My own preference would be to retain some expert appointees, at least – but allow them only to speak, not to vote.

If we’re to have an all-elected Lords then I do think it should be elected proportionally: its role will be a conservative one, of checking government action, so I think the inherent consensualism of PR will be right for it. It’s good that Labour wants open lists (where you’ll choose which candidates you want, and not be stuck with the ones the parties most want to stuff into the Lords). Why, though, should the Lords be elected in parts, rather than all at once? If we elected the Commons like that, we’d be stuck with some of the worst expense-troughing MPs for another ten years. Again, though, it’s probably right that the people should have the final say on this.

… a free vote in Parliament on reducing the voting age to 16, for which we will make government time available.

I’m in favour of this reform. Why should it be a free vote, though?

We will implement the recommendations of the Calman Commission, including giving the Scottish Parliament additional tax-raising powers, and seek ways to build consensus behind these changes. In Wales, we will work with the Welsh Assembly Government on a referendum to enhance the powers to make laws…

Good policies in my view.

We believe that there is a case for reform of the laws concerning marriage to Roman Catholics and the primacy of male members of the Royal family. However, any reform would need the agreement of all the Commonwealth countries of which the Queen is the Sovereign.

I suppose the Commonwealth does have to agree. I find it difficult to believe that Commonwealth countries might not consent to this, though; and any who do not must be made to realise they are in effect blocking amply-justified constitutional change in other liberal democracies, and pressurised if need be. We should be able to get on with this within a Parliament.

On human rights, Labour says

We are proud to have brought in the Human Rights Act, enabling British citizens to take action in British courts rather than having to wait years to seek redress in Strasbourg. We will not repeal or resile from it.

That seems to confirm its intentions on a Bill of Rights and Responsibilities, which Labour for a time seemed to be trying to sell as a revised Human Rights Act, before pulling back. In fact, the manifesto is better, since it dispenses with any further pretence. Labour plans no change on human rights.

Importantly, the manifesto says

To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely.

I’ve not blogged much about libel reform for various reasons, but I support this strongly. I think Britain is gradually moving from a media law under which writers had to fear writing things that were damaging, regardless of where the public interest lay, to a media law under which they need to be wary of writing things that are private, unless they’re in the public interest. A wholly positive change which we need libel reform in order to complete.

As far as crime is concerned, Labour says

We will continue to make full use of CCTV and DNA technology… Labour will ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.

I don’t share the common instinctive aversion to CCTV and the DNA database, and I’m pleased Labour stands behind them both. The truth of course is that the differences between the big parties on DNA are fairly narrow: all of them would retain a database, and only the LibDems would restrict it to convicted offenders.

… when someone suffers repeated ASB [anti-social behaviour] and the police, council, courts or other agencies fail to act, there must be a stronger form of redress. So we will legislate to give people financial support to pursue legal injunctions, with the costs met by the agency that let them down.

This sounds fair enough, though it’s not all that easy to imagine how people will be able to use the power in practice, or who will decide when an agency has “let them down”. As for the pledge that Labour will

Expand tough ‘Community Payback’ for criminals who don’t go to prison, giving everyone the right to vote on the work they do

I haven’t researched statistics on this, but my impression is that this is something on which delivery has lagged well behind politicians’ rhetoric. I’m all for credible, tough community sentences as an alternative to prison, but I’m not sure it helps to allow people to vote, “Strictly Come Paying Back” style, on what work offenders do.

Labour offers a couple of interesting proposals in the employment law field. There’ll be

More help for parents to balance work and family life, with a ‘Father’s Month’ of flexible paid leave

and

The right to request flexible working for older workers, with an end to default retirement at 65, enabling more people to decide for themselves how long they choose to keep working

both of which I support, though I doubt Fox lawyers do.

Finally, there are a couple of interesting proposals on company law and on mergers and acquisitions. The manifesto says

There needs to be more disclosure of who owns shares, a requirement for bidders to set out how they will finance their bids and greater transparency on advisers’ fees. There should be a higher threshold of support – two-thirds of shareholders – for securing a change of ownership and the case for limiting votes to those on the register before the bid should be examined

and

We now propose to extend the public interest test so that it is applied to potential takeovers of infrastructure and utility companies

which is oddly placed in a section of the manifesto about infrastructure, but which I think can only refer to corporate takeovers rather than to planning decisions. Together these measures would go further than the “Cadbury” law the media had expected since the “two thirds threshold” test is proposed to apply to all takeovers regardless of public interest – and then there’ll be the extra public interest test in infrastructure on top of that. I don’t know what I think about the public interest test; but I do think takeovers, while of dubious social and even commercial value, are of personally enriching for many corporate leaders and advisers and contribute to the bubbly, leveraged, get-rich-quick capitalism we’ve suffered for too long. So the two-thirds threshold gets my thumbs-up.

In summary, then: the human rights, crime, employment and company law element of Labour’s manifesto seem to me sensible and worth supporting. Some of the consitutional law proposals raise concerns, though. I’m not sure about Labour’s plans for the Lords, I’m against the idea of fixed-term Parliaments and I’m really, really worried by this slack, careless talk of a written constitution.

This post first appeared at Head of Legal