On page proofs, and two cases that didn’t make the cut

We delivered the typescript of the 7th edn to the publishers at the very end of February 2011. We received the page proofs in late May. Correcting the proofs is the last chance authors have of making changes to the text as published. Publishers quite understandably seek to limit the extent of authorial changes permitted at this (late) stage. We were able to add new information where is was essential to do so, and a lot happened between late February and early June, including:

  • the Welsh referendum on enhanced legislative powers for the Assembly
  • the UK referendum on not moving from first-past-the-post to AV
  • the astonishing success of the SNP in the May 2011 Scottish parliamentary elections, a result that could have extraordinary consequences for the future of the British constitution and, at the least, has consequences for the passage of the Scotland Bill, which is about to finish its Commons stages and commence its Lords stages
  • as well as the Scotland Bill, other legislation with constitutional implications making its way through Westminster includes the European Union Bill, the Public Bodies Bill, the Localism Bill and the Fixed-term Parliaments Bill
  • and, of course, the courts remain busy. Important decisions were handed down in the months of March-June 2011 in a range of fields covered in the book, including R (Moos and McClure) v Metropolitan Police Cmr [2011] EWHC 957 (Admin) on police powers, public protest, and “kettling”; and Walumba Lumba v Secretary of State for the Home Department [2011] UKSC 12 on secret policies, transparency and the rule of law

References to all of these developments were added at proof and will appear in the book as published later this summer. In addition, a separate and longer note on the extremely important decision of the Supreme Court in Walumba Lumba will appear on this site soon.

In addition, two decisions that did not make it into the book, but which are nonetheless important, are R (Shoesmith) v OFSTED and others [2011] EWCA Civ 642 and R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin). A word on each here.

Shoesmith you may have read about in the papers. Sharon Shoesmith was suspended as Director of Children’s Services at Haringey in 2008 amid a media furore over the death in 2007 of “Baby P”. She sought judicial review of the decision to suspend her, arguing that it had been unlawfully made on the ground that she had not been afforded a fair hearing. OFSTED had been called in to conduct an investigation. Following its (critical) report the Secretary of State (Mr Ed Balls) exercised his statutory powers to direct that an alternative individual be appointed Director of Children’s Services at Haringey; he then gave a press conference at which he announced that Haringey would be considering its employment relationship with Ms Shoesmith’ “immediately”. Later that day Haringey suspended her. The Court of Appeal ruled that while OFSTED had not acted unfairly in conducting its investigation under very difficult circumstances, the Secretary of State and the local authority (Haringey) had acted unfairly. Ms Shoesmith had been “summarily scapegoated”, said Maurice Kay LJ (at [135]) and, even if she was not blameless, she was entitled to be treated lawfully. Like the earlier case of Venables and Thompson (R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407), the case raises the difficult issue of how a politically accountable decision-maker such as Mr Balls is to act in the face of a media frenzy that included, in this instance, a petition organised by the Sun newspaper that Ms Shoesmith should be sacked. Not to act as he did would have led to an immediate outcry in the press and, no doubt, also in Parliament. But in acting as he did, he behaved unlawfully. A troubling instance of the Government’s political and democratic accountability clashing with its obligation to abide by the due process of law. (Shoesmith can be read alongside other cases on procedural fairness considered in chapter 10.)

Evans is an interesting case that touches on an important aspect of the rule of law (see chapter 2). Ms Evans is a civil liberties campaigner and peace activist. She has brought important legal proceedings against the Ministry of Defence (MOD), proceedings that raise disturbing questions of the UK’s complicity in the torture and inhuman treatment of detainees in Afghanistan (the matter is considered in the 7th edn of the book). The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke) sought to change the rules governing legal aid, such that public interest cases would cease to be funded other than in environmental cases. This would bring an end to the legal aid received (for example) by Ms Evans. It turned out that the initiative behind the change in the legal aid rules had come not from the Ministry of Justice but from the MOD, who saw the move as a means by which the Government could avoid an adverse result in litigation claimed to raise implications for defence and security. The Divisional Court had no difficulty in ruling that this was an irrelevant consideration (see chapter 10) and that the rule change was therefore unlawful. (This does not mean that the Government is necessarily compelled to fund such litigation: only that in ceasing to fund such litigation the Government must rely only on relevant considerations.) At para 25 of its judgment the Court ruled as follows:

“For the State to inhibit litigation by the denial of legal aid because the court’s judgment might be unwelcome or apparently damaging would constitute an attempt to influence the incidence of judicial decisions in the interests of government. It would therefore frankly be inimical to the rule of law.”

You can read the full judgments here (Shoesmith) and here (Evans).

On page proofs, and two cases that didn’t make the cut