Gordon Brown’s legal landmines may slow the Coalition’s advance

Financial Secretary to the Treasury Mark Hoban crashed and burned on Radio 4 this morning. When asked whether he had conducted a formal study of the impact of the government’s spending proposals on disadvantaged groups, he didn’t have a clue what the interviewer, Justin Webb, was talking about. That this is a legal requirement was clearly news to him and he repeatedly avoided answering the question.

As this was going on, UNISON, the public sector union, announced that it would mount a legal challenge against Andrew Lansley’s NHS white paper on the grounds that the NHS constitution is legally binding and prevents the government from implementing any change without major consultation.

Some commentators have already spotted the potential legal booby-traps in the measures brought in by the Labour government in its dying days. Legislation giving people legal entitlements to public services and stronger equality laws were always going to make it more difficult to cut public spending. Theresa May anticipated this back in June and warned George Osborne about it before the budget.

Commenting on Mark Hoban’s debacle, the Spectator’s Frazer Nelson accused the government of completely missing these ‘New Labour landmines’:

Labour transferred power from parliament (where it was about to lose power) to the courts (where the lefty judiciary reign supreme). Their calculation was that if they did this quietly enough, and in technicalities, the Cameroons would not wise up to it because of their aversion to detail.

Actually, they didn’t do it that quietly. Polly Toynbee, one of the Labour Party’s most prominent supporters in the media, explained exactly what they were up to back in June 2009. She even described the legislative programme as ‘a spending landmine’.

These spending landmines are starting to go off. There will almost certainly be more legal challenges to the government’s spending programmes. As with the civil service redundancy scheme, the government may find that it has to repeal legislation before it can implement its programme. That will slow things down and take up time that the Coalition had hoped to use for other bills.

It remains to be seen whether the judiciary is as lefty as Frazer Nelson thinks, and whether it will uphold any or all of these challenges. All the same, the Coalition should have a contingency plan in case it needs to spend the next year unpicking Labour’s legislative landmines.

Update: The Equality Act is not in force yet so Justin Webb was jumping the gun here. (See Darren Newman in the comments thread below.) Unfortunatley, Mark Hoban didn’t seem to be aware of that either.

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4 Responses to Gordon Brown’s legal landmines may slow the Coalition’s advance

  1. Pingback: Gordon Brown’s legal landmines may slow the Coalition’s advance - Rick - Member Blogs - HR Blogs - HR Space from Personnel Today and Xpert HR

  2. I heard the interview on R4 between Justin Webb and Mark Hoban but I’m afraid I couldn’t get past the point that Justin Webb repeatedly referred to the Government being under a duty imposed by the Equality Act 2010. As we all know, the Act is not in force yet and the public sector equality duties won’t be in for some time.

    I know this is incredibly picky, but when we’re taking about a legal obligation I think a bit of pickiness is appropriate – at least identify the correct piece of legislation!

    There are currently three equality duties relating to sex, race and disability. Each works slightly differently but is based round the public body in question having ‘due regard’ to the need to avoid unlawful discrimination and promote equality.

    When it comes to individual spending decisions by Government department, they will of course have to show that they did have such ‘due regard’ – but does that extend to the budget? There is an exception to the gender duty which excludes ‘a function in connection with proceedings in the House of Commons or the House of Lords’ (see S.76A(4)(a) of the Sex Discrimination Act 1975) and the Disability duty does not apply to ‘any act of, or relating to, making or approving an Act of Parliament’ (See S.49C92) Disability Discrimination Act 1995).The Race Equality Duty works differently because it only applies to specified bodies and while government departments are specified, Parliament is not.

    Since the budget is essentially a Parliamentary measure voted on by MPs, it seems to me that it is not covered by the statutory duties. Individual spending decisions flowing from the budget and made by government departments or other bodies will be covered by the duties, and it was to this that Theresa May was drawing attention in her letter. Her letter is not is sign that she is genuinely worried by the way, its more part of the paper trail that will show that government departments did have ‘due regard’ to equality when making their decisions.

    In the UK we have an eight word constitution: ‘anything the Queen enacts in Parliament is law’. I’d be flabbergasted in the courts sought to interfere with issues duly debated and voted on in Parliament. What executive decisions Ministers then make is of course a different matter.

    Sorry to be legalistic, but if these challenges go ahead things will get more legalistic still. I hope Justin Webb is up to it.

  3. Rick says:

    Thanks for this Darren – and despite what you said on Twitter, it’s not boring. I’m guessing that you don’t think challenges on the basis of equality will work – what do you think about UNISON’s NHS challenge?

    • Well I’m not a public law expert nor an expert on the NHS, but all I can find is a duty to consult over changes in the NHS constitution and a duty on health bodies to have regard to that constitution in carrying out their functions (See Ss 1-5 Health Act 2009). Perhaps surprisingly the duty to have regard to the constitution does not seem to apply to the Secretary of State or his department. I would have thought that the question is whether the structures of the NHS can be changed without an amendment to the constitution itself. I can’t find any requirement to keep the constitution up to date and reflective of the wider legal framework that the NHS operates in, so I don’t see any restriction on amending that framework – although I could be missing something.

      There might be a more general point that a consultation will not be proper one if the Government has already made its final decision. if the consultation is not a genuine one then it may be subject to JR under normal public law principles, but I don’t think that the constitution itself prevents major NHS reform.

      As i say, this is not my area, so I could be very wrong!

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