Constitutional Democracy v Public Order Policing?


That Britain has a distorted electoral system that allows for a majority government to be formed out of a minority of the enfranchised population, is well known. Or put in another way, a political party may command a majority in the House of Commons when a majority of the enfranchised population did not vote for it.

Party discipline exercised by the Prime Minister and enforced through his party whips will usually ensure that the Government will obtain sufficient legislative support from its back-bench MPs.

Domination of the legislature by way of executive fiat is more subtely exercised through the Standing Orders of the Commons over which the English Courts have no jurisdiction. Chief among these is Standing order 14 which allows the government to control what may or may not be debated in Parliament, regardless of the support (or lack of it) it may muster for any particular issue.

By controlling the business agenda of the Commons the Government may strangle at birth any debate or vote on issues which may have provoked large amounts of constituency letters to an MP who wishes to raise the issue or matters on which the government is likely to receive no support or otherwise wishes to keep out of the public domain.

Each Thursday, the leader of the House of Commons sets out the Agenda for Government business in the House. Under Standing Order 14, the government’s business will have priority over every sitting of Parliament with the exception of 20 opposition days and 13 private member bills days. Here, however, the Government will decide what will be debated and how much time it will allocate. There exists no redress if the government fails to allocate the correct number of days. Neither does there exist any mechanism for securing a general debate on miscellaneous issues the opposition may wish to raise or vote upon. It is irrelevant therefore how many millions of constituents fill the postbags of constituency MPs over any issue which they feel strongly, it cannot be raised, let alone voted upon in Parliament, in the absence of agreement by the Government. In other words, the executive have complete control over what is raised and what is voted upon. Executive power of those elected to represent their constituents is quite considerable.

Constitutionally, the English courts have no jurisdiction to correct defects or irregularities in the manner or form in which Parliamentary business is conducted, no matter how undemocratic in principle or ‘unconstitutional’ in practice. It may mot, for example interfere in the manner in which an Act of Parliament has been introduced or passed. In Edinburgh v Dalkeith Railway Company vv Wuachop [1842] Lord Campbell observed that no court can inquire into the manner in which a bill was introduced, and what was done previous to its introduction or what passes through its various stages. This was affirmed as recently as 1974 when, in British Railways Board v Pickin [1974], in which the court was constitutionally disabled from intervening when it was alleged that a bill had been procured by fraud. Morover, a Crown Subject has no recourse the courts should a government, on achieving power simply tear up any or all of the manifesto upon which it was elected. R v Secretary of State for Education and Employment ex parte Begbie[1999] .

One will therefore hear no debate, let alone vote on how much the Treasury extracts from the television licence fee paid by millions of people which goes straight into the general fund and how much of it is actually allocated to the BBC. Such frustration of the stifling of debate in a representative Parliamentary democracy sometimes spills over onto the floor of the Commons. On 15 January, the Transport Secretary and earstwhile Secretary of State for Defence Geoff (Buff) Hoon announced Government plans to open a third runway at Heathrow Airport. It is a decision that affects thousands of people who live in the affected area who petitioned their MP, John McDonnel to make representations to Parliament on their behalf. The government refused to allow MPs to vote on the decision. Mr McDonnel, made his protest clear by grabbing the Speaker’s Mace and holding it aloft, a protest which several MPs before him had engaged in, such as the late Labour MP Ron Brown, and the Conservative MP Michael Heseltine who earned the Nickname ‘Tarzan’ for swinging the mace over his head.

For his act of defiance Mr McDonnel was suspended from Parliament for five days. He said, in a statement to the BBC: “"My job is to represent my constituents. Today I was reasserting the values of democracy and the overriding sovereignty of parliament, so I don't feel I should apologise.”

One must therefore question the efficacy of engaging in that typically British practice of writing to a constituency MP or attending his surgery given the futility of the exercise even if he or she is not possessed of a ‘tin ear’ and is personally sympathetic to the issue in question. His ability to represent his Parliamentary constituents is severely constrained by a Government who, because of its exclusive control of the Parliamentary agenda may be predisposed to allow a vote only if it is likely to either elicit or coerce sufficient support for its programme from its back-bench MPs

Peter Mandelsohn, who, shortly after his appointment as a European Commissioner said “that the days of representative democracy in Britain are almost over’ (when he thought we were not listening) choked on those words through a face full of Green custard thrown by a runway protester when he returned as Secretary of State for Trade. One might suggest that that as a matter of political causation, there is a link between the state of affairs articulated by Mandelsohn, and the state of his suit!

While the head of the IPCC had today, after the ninth investigation into Police misconduct called for a ‘national debate’ on the type of public order policing we want in this country, perhaps it would be more appropriate to question why those who take part in ‘direct action’ feel that the only voice they have left is a protest on the street in confrontation with a state which denies them or their elected representatives any voice in Parliament.
Iolis said:
That Britain has a distorted electoral system that allows for a majority government to be formed out of a minority of the enfranchised population, is well known. Or put in another way, a political party may command a majority in the House of Commons when a majority of the enfranchised population did not vote for it.

A majority of the enfranchised population not voting for it is not the same as a majority of the enfranchised population voting against it. Bear in mind that the majority of the enfranchised population frequently do not vote these days anyway; IIRC the last general election had a turnout somewhere between 40 and 50%. To make a very simple example not related to the intricacies of British electoral procedure, if 40% of a fictitious country voted in an election, and of those 50% supported Part A, 25% Party B, 20% Party C and 5% Party D then Party A wins even though only a fifth of the country explicitly supported it.


Thank you Bravo Zulu,

On 5 April 2005 The government was formed with 55% of the seats in Parliament for 36% of the votes cast in its favour. 64% of the enfranchised votes went to the other parties. Whatever the source or finer points of accuracy of the statistics, it was a majority government formed from a minority of the total votes cast which allowed it a mandate to put into place constitutional reforms to an extent greater than those carried out by Oliver Cromwell.
Iolis - fine statement exposing the problem but where do you see (any)(the) solution? I have very great doubts about PR; I take Italy as my example of that game.
Modern communications allow demonstrations to have great effect. The same efficiency of communication used by the meeja is largely responsible for the form of 'debate' we see in the death at G20 thread here. A monster curate's egg is formed. People are more used to blunt speaking and showing opposition than ever before. Watt Tyler would have been proud of 1 April. I suggest these two things were never available in the past and we need to find new systems to take account of this.
Firstly, our 'masters' need to admit it has all gone Pete Tong. A rerun of Linda Lovelace meets John Brown - they will never swallow anything that will harm their swill from Fortnum & Mason. So, anything new in the way our Government is chosen will have to recognise that the Old Order has Chang'ed.


Unfortunately, too many in Government regard the separation of powers, the rule of law and the principle of legality as simply inconvenient obsticles to be trumped by the Sovereignty of Parliament. The latter principle leads to much constitutional illiteracy by government ministers. We saw examples of this from successive Home Secretaries. Michael Howard and David Blunkett for example who have been responsible for a great many constitutional reforms foisted upon the public with little or no consultation.

Thus, for example, the introduction by the Government of a new supreme court, the removal of the Lords of Appeal in Ordinary from the House of Lords, the abolition of the office of Lord Chancellor and the appointment of an 'independent' judicial appointments panel under the Constitutional Reform Act 2005. The intentions of the government were 'leaked' to the public by way of report in the Sunday Telegraph before either the Lord Chancellor or Lord Chief Justice were even consulted which is surprising given that the Lord Chief Justice was to be made head of the judiciary!

Unoubtedly, the principle that Parliament may make or unmake any law it chooses nor bind its succcessors or be bound by its predecessors is a fundamental aspect of our constitution but it only arises because our courts recognise and gave effect to such a principle at the end of the Civil war when Parliament claimed it for itself as an act of revolutionary violence. The courts acquiseced in it in order to preserve their own authority the limits of which have never been tested.

Recently, however, the courts have, to their credit become much more active in the protection of fundamental constitutional rights and have began to recognise that Parliament does not have a complete and unfettered freedom to do what it likes regardless of the rights and interests of Crown Subjects. This would have been unthinkable ten or even fiften years ago.

This change of emphasis has taken place largely unnoticed by the public since there has been but little notice taken of it by the mainstream media.

We have, for example, the controversial and groundbreaking judgement of the Divisional Court in Thoburn v Sunderland City Council [22002] (the 'metric martyre case) in which the court was prepared to recognise the existence of a hierachy of 'constitutional statutes' which could simply not be overturned by implied repeal. In other words, the doctrine of implied repeal, operating as it does to allow a later inconsistently statutory provision to impliedly repeal an earlier inconsisten provision would no longer apply to certain statutes regarded as 'constititional'. Parliament would, in respect of such statutes have to repeal them by express wording (and take the political consequences of doing so). Thus, statutes such as the Human Rights Act 1998 and others would be regarded as 'constitutional' in nature, forcing the legislature to be open and honest in the way in which such statutes are amended or repealed. Since the doctrine of implied repeal was an invention of the common law and not statute, it was open to the courts to modify or disapply it as the courts saw fit.

Another development was that of judicial review which led to a clash between the government and the judiciary which although reported in the legal press, remained largely unnoticed by the public at large.

Judicial review is that branch of public law which subjects the organs of state to review by the courts should the state exceed the powers granted to it by Parliament. For example, if a local authority exercises powers that are illegal, or exercises them irrationally or in breach of natural justice, or fetter their discretion, or unlawfully delegate authority to act to minor functionaries, or fail to consult the public when required to do so, the courts may make a series of orders such as quashing a decision, or requiring the public authority to think again and, if necessary award compensation to the subject affected by such a decision. Judicial review by the courts has long been a thorn in the side of successive Home Secretaries and other ministers and officials who have been vocal in their distate at having their authority confined to within proper limits by the courts.

Successive governments have sought to oust the jurisdiction of the courts by way of 'ouster clauses' placed within various statutes to oust the jurisdiction of the courts either wholly or in part. None of which have been totally effective.

In 2003, the Government sought to oust the jurisdiction of the courts to judicially review the decisions of immigration tribunals in the Narionality, Asylum and Immigration Bill. Wolf CJ (as he then was) warned of the dire consequences of doing so. He warned that such a move would be the catalyst for a written constitution. Lord Styne was rather more robust stating that 'the judiciary are an independent estate within the realm, the government do not exist to put us out of business - we will simply ignore their ouster clause'. This open act of judicial rebellion forced the government to withdraw the clause from the Bill since had it succeeded, similar ouster clauses would have been inserted within other statutes to limite and then oust the jurisdiction of the courts in entire areas of public law to the detriment of the Subject who would have been left with no recourse to the courts in the face of arbitrary and self-assumed power exercised by public authorities. In the event, the government decided not to push its luck and withdrew the offending clause.

While such examples may, on the surface appear to be relatively minor, they at least recognise and gives effect to a general awarness by the judiciary and by the public at large of an encroaching and growing threat to civil liberties in the United Kingdom.

It will take a great deal of work and a good many years to put right the violence inflicted by the government on the constitution of this country and the damage done to civil liberties but there is, at least a feeling that the point has been reached where is a greater recognition of the fragility of the feedoms and liberties that are currently enjoyed by Crown subjects; and greater willlingness to subject government initiative to a greater degree of scrutiny than existed in previous years.


A very perceptive, balanced and well posed thread. I think that, without addressing all the points contained within it, that the a constables powers under common law regarding a breach of the peace, and poswers of reasonable force to prevent it occuring or\continuing without having to arrest the persons involved remain relevant. However are in some ways incompatable with the current application of powers under Sect 4, 4(a) and 5 of the Public Order Act. I write this as a serving police officer.


Perhaps one aspect of the 'public debate' may legitimately be directed at the Police as a political lobby' group through ACPO in seeking to influence the legislative process. Is it necessary or desirable for policing in this country that those charged with enfocement should be so closely concerned with the creation of powers they seek to enforce, either specifically, as with anti-terrorist legislation, or generally, as political and legislative lobbyests? Is it right that the Police may move into areas that other uniformed branches of the disciplined services are forbidden to tread?

It appears that that such influence was much in evidence during the debates in Parliament during the counter-terrorism Bill. It led to this statement in the Lords recorded in Hansard:

Tues 8 Jul 2008 (Hansard HL Deb cc 695-696)

Lord Dholakia: "My Lords, I wish to concentrate on two issues, neither of which contains any legal arguments: the role of the police and the impact of the Counter-Terrorism Bill on our diverse society, a point that was well made by the noble Lord, Lord Ahmed. No one disputes that it is the duty of the Government to ensure the safety of all their citizens. However, we should bear in mind three factors. First, there is no such thing as total security, a point that was well made by the noble Baroness, Lady Manningham-Buller, in her maiden speech. Secondly, the Government alone do not have the capacity to provide security for all their citizens. Thirdly, active citizen participation is essential if we are to tackle terrorism and the factors that give rise to it.

We must never forget that community participation is conditional on how the community views government action in relation to the protection of civil liberties. These are the essential values that we hold as a democratic nation and for which we have fought for decades. They are not something that we should surrender lightly. Unfortunately, the Counter-Terrorism Bill is one step in that direction.

We have seen over the past few years attempts by the Government to erode values that have stood the test of time. Look at the adverse and disproportionate impact of proposals such as for the abolition of jury trials, the collection of DNA samples and the data of innocent citizens, identity cards that seek disproportionate information about individuals, and now counterterrorism measures that strike at the heart of our fair and just judicial process.

My main concern is the role of the police in aiding and abetting the political process. We owe a huge debt to our police officers for the way in which they protect our community, but I part company with them when they indulge in the political process. During the Brixton disorders in the 1980s, we were privileged to have the wisdom of Lord Scarman, who redefined the traditional approach of policing by consent. We must add to this the principles of non-partisanship and the full accountability of the rule of law, which has served us so well for the past 200 years. I am afraid that these principles are being sacrificed. No one can dispute that there is now considerable interference on the part of the police in our political process.

I do not question the right of chief officers to brief the Government—some do it well—within the confines of their relationship with the Home Office. But I question the need for serving officers attending Parliament in chauffeur-driven cars to voice their opinions to parliamentarians. This sacrifices their independence. It erodes the confidence of communities in the principles of non-partisanship and brings the police into disrepute. In the Police Foundation’s John Harris memorial lecture last week, Shami Chakrabarti said:

“For in order for democracy to flourish for more than a brief moment, fundamental rights and freedoms and the rule of law must be protected by independent professionals. Not just the right to free and fair elections but interconnected rights to speech, protest, privacy, conscience, association, equal treatment, fair trials and against arbitrary detention and inhuman and degrading treatment. It is easy to see politicians and judges as the moving and fixed parts of the machine respectively. However the constitutional positioning of the police service is equally important. It seems clear to me that in contrast with other systems, the British policing tradition places the service under the rule of law rather than the political pillars of the constitution”.

It is easy to dismiss these words, coming as they do from a seasoned campaigner from Liberty. However, she has hit the nail on the head, because past experiences clearly demonstrate that we remove non-partisanship at our peril.

The nearest that we came to losing the semblance of local policing was during the miners’ strike. Strategy and operational methods directed centrally left an ugly scar on our mining communities. It is not my intention to comment on the rights and wrongs of that strike. Suffice it to say that, after decades of such actions, the trust between local police and what is left of the mining communities remains at a low ebb. I do not exclude the Association of Chief Police Officers. After the London bombings of 7/7, it was the first in line asking for new policies, with the 90-day detention at the top of its list. It is important to ask a simple question. Does ACPO represent the police point of view? If so, what consultation took place to ensure that this was so? Obviously the Freedom of Information Act 2000 does not apply in this case and let us not forget that ACPO is substantially funded by the Home Office."


BBC Radio 4's The Report, analyses the way in which the Police abuse and misrepresent their statutory powers to gather low level intelligence on individuals they regard as subversive.

Just as the during the late 1980s and early 1990s the government conflated the distinction between 'terrorism' and 'serious organised crime' and then 'serious crime' to elicit Parliamentary support for the imposition of draconian provisions within criminal statutes; it appears that the government now conflates the distinction between 'terrorism' and the legitimate expression of dissent by way of public protest as a 'threat' to society.

The programme last for 30 minutes and one will need to instal the BBC ''i' Player to listen to it.


martin7606 said:
A very perceptive, balanced and well posed thread. I think that, without addressing all the points contained within it, that the a constables powers under common law regarding a breach of the peace, and poswers of reasonable force to prevent it occuring or\continuing without having to arrest the persons involved remain relevant. However are in some ways incompatable with the current application of powers under Sect 4, 4(a) and 5 of the Public Order Act. I write this as a serving police officer.

In R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 All ER 529 Lord Bingham analysed the distinction between the statutory powers of the Police to control public protest under the Public Order Act 1986 (as amended) as it evolved from it’s genesis in the Cable Street riots with Mosley’s Blackshirts in the late 1930s and the common law powers of breach of the peace. You may recall that in Laporte, the House of Lords considered the decision of the police to prevent a coach load of peace protestors from travelling to a protest at RAF Fairford and forcibly return them to London. The police sought to justify the legality of their decisions as actions reasonably taken to prevent a reasonably anticipated breach of the peace. The House of Lords concluded that the police’s action in preventing the protestors from travelling to the demonstration and forcing them to leave the area was an interference by a public authority with the exercise of the protestors’ rights under Articles 10 and 11 ECHR which was not prescribed by law, as the police did not believe that a breach of the peace was imminent.

More recently, on 23 March 2009, in the wake of the G20 demonstration, the Joint Parliamentary Committee on Human Rights published its seventh report in Parliamentary Session 2008/2009 In that report, which has received virtually no press attention, the Joint Committee took evidence from a variety of witnesses, including oral evidence from the Met and Northumbria Police, and examined a variety of statements submitted to the Joint Committee. Interestingly the Joint Committee examined the scope of section 5 POA and found its use to be disproportionate. Some may recall as indeed did the Joint Commitee, that s5 was used in the ‘Gay Horse’ incident

The Joint Committee have recommended to the government that section 5 is amended. See paras 78 – 85 of the Committee Report.

Interestly, an opportunity was missed, in my view since the attention of the Joint Committee did not appear to have been drawn to section 125(2) Serious Organise Crime and Police Act 2005 which inserted a new section 1A into the Protection from Harassment Act 1997 creating the offence of harassment of two or more persons intended to persuade any person not to do something he is entitled or required to do or to do something he is not under any obligation to do which is broad enough to provide a remedy for anyone subject to the abuse or misrepresentation of lawful authority intending to achieve an outcome destructive of established rights.

whereas prior to this amendment, such a course of conduct was required 'on two or more occasions', section 125(7) of SOCPA inserts and amends section 7(3) of the 1997 Act in relation to offences under section 1(1A)(as amended) by requiring such conduct to occur on one or more occasion!

The test of what amounts to harassment remains the same. Putting a person in fear of violence (s4) or alarming another person or causing distress to that person (s7(1).

The response of the Government through the Secretary of State for Justice to the report of the Joint Committee is awaited.



Article 5 ECHR and Crowd Control [2009]3 Web JCLI
Genevieve Lennon, PhD student, Centre for Criminal Studies, University of Leeds

"The recent House of Lords decision in Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 raises issues relating to crowd control, public order and Article 5(1) ECHR. Of particular interest is the use of the novel 'purpose principle' in relation to Article 5....."

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