The last ten weeks of 2011 were a relatively quiet time in terms of major constitutional developments. The beginning of 2012, by contrast, has started with a real bang, and is witnessing a dispute between the UK and the Scottish Governments that could well set much of the constitutional agenda for the next three years. I will say more about this in another post in the next few days.
First, there are two matters from the end of 2011 that I want to update. This post concerns legislation. The next post will concern an under-reported development with regard to the process of constitutional reform.
Three Bills referred to in the book have now been passed (this is in addition to those Bills noted below last October). The newly enacted measures are the Localism Act 2011, the Public Bodies Act 2011 and the Terrorism Prevention and Investigation Measures Act 2011. A word now on each.
Section 1 of the Localism Act has now enacted the form of words (quoted from clause 1 of the Bill) that we cited at p 273 of the book. The question posed at p 273 and the comment made at p 276 still apply: i.e., whether the new s 1 will mean the end of the ultra vires principle or whether it will mean only a qualification to that principle; and to note while the Act liberalises local authorities to some extent, at the same time it confers a range of fresh powers on the Secretary of State. The former will be determined in due course by case law. One further provision of the Localism Act 2011 to note is section 25, which concerns the law of bias (or predetermination) in the context of local authorities. Case law on this matter is set out in chapter 10 (p 696). Section 25 would appear to make it harder than is suggested in the case law to argue that a decision of a local authority should be quashed for reasons of predetermination.
The Public Bodies Act 2011, as prefigured at p 436, effects very considerable reforms to arms-length bodies (or quangos). As predicted in chapter 2 (pp 129-30) the legislation was substantially amended during its passage through Parliament in the light of the extensive criticisms of the Bill that were voiced by the select committees that examined it. For example, a number of the procedural safeguards now legislated for in section 10 of the Act were not contained in the Bill as it was first introduced.
Finally, the Terrorism Prevention and Investigation Measures Act 2011 (the TPIMs Act) will, when it is brought fully into force, repeal the Prevention of Terrorism Act 2005; and thus TPIMs will replace control orders in the panoply of the UK’s counter-terrorism measures. The ministerial statement that announced this is reproduced at p 787 of the book.