Thursday, 11 April 2013

Baroness Thatcher of Kesteven

Although law and politics have an overlap, the main aim of this blog is to look at the law as either enacted through Parliament or expounded by the judges through their judgments in decided cases.  Occasionally, it seems appropriate to depart to some extent from that norm.  The death of former Prime Minister Margaret Thatcher seems to me to be such a time.  I did not admire every policy adopted by the 'Iron Lady' and her government's implementation of policy could be uncaring and even brutal.  Nevertheless, I had admiration for her conviction and courage.  In this post my aim is merely to touch upon a few of the issues which arose in her time in office and which had long-lasting influence on the law.

Thatcher became Prime Minister in May 1979 and served until November 1990.  She was preceded by James Callaghan (Labour) who, on 28th March 1979, lost a vote of confidence in the House of Commons - (see Wikipedia - Callaghan Vote).  A general election was called and was won by the Conservative Party under Margaret Thatcher.  Interestingly, Callaghan lost the vote of confidence by just one vote which, at the time, I thought surprising given the Winter of Discontent 1978-79.

Winter 1978-79

The Thatcher years were noted for terrorism - often, in connection with Northern Ireland: e.g. the murder of Lord Mountbatten of Burma (August 1979); bombs in Hyde Park, London (July 1982); the Brighton Hotel bomb (October 1984).  Throughout those years, the Prevention of Terrorism Acts - (first enacted in 1974 after bombings in Birmingham) - were continued in force by annual renewal in Parliament.  These were the precursors to permanent terrorism legislation from 2000 onwards - (see article by Kathryn Fisher).  The UK now has a complex web of anti-terrorism law - Terrorism Law resource.  In Northern Ireland, non-jury trials for certain 'scheduled offences' were introduced in the early 1970s and they continued in force through the Thatcher years and beyond - see Diplock courts and Law and Lawyers 14th October 2010.  A lingering legacy of the Diplock Courts is that non-jury trial for certain offences continues to remain possible in Northern Ireland - see Rights Watch UK - March 2013.

The 1970s was a decade marked by considerable industrial unrest particularly in large manufacturing industries.  Government and the law had proved to be ineffective in dealing with this.   The Industrial Relations Act 1971 which established the National Industrial Relations Court was a bête noire of the Trades Union movement.  The incoming Labour government in 1974 wasted little time before introducing a Bill to repeal the 1971 Act even though some innovations made by the 1971 Act were retained such as  'unfair dismissal.'  The new legislation became the Trades Union and Labour Relations Act 1974.  During Thatcher's first term in office, further reforms to Trades Union law were made by the Employment Acts of 1980 and 1982.

Goose Green ~ Falklands
1982 was the year of the Falklands campaign.   The invasion of the islands by Argentina may be seen as a failure of British foreign policy and Lord Carrington took responsibility for this and resigned.  The people of the Falkland Islands recently voted in a referendum to remain a British Overseas Territory.  However, given the resurgence of Argentinian interest in the islands, this is unlikely to be the end of the dispute.  The successful recovery of the islands by the armed forces gave Thatcher a major boost in  opinion polls and undoubtedly encouraged her to go to the country in 1983 - (General election 1983). 

The Miner's Strike of 1984-85 was marked by extensive violence and confrontation between the Police and miners.  It ended with the demise of most of the coal mining industry but with, at the time, very few employment opportunities for former miners.  The resulting devastation of whole communities dependent on the one industry was tragic and there is lasting bitterness to this day though the power of central government was asserted.

A further assertion of governmental power in relation to the Trades Unions was the Council of Civil Service Unions case which arose from a decision not to permit Trades Union activity at GCHQ.  Prior to this case, there was a view that Royal Prerogative powers were not subject to judicial review.  However, the House of Lords held that exercises of the Royal Prerogative were generally subject to judicial review, with certain exceptions such as matters of national security. This case established that the application of judicial review would be dependent on the nature of the government's powers, not their source.  The government won the case on the trump card of national security and trades unions were excluded from GCHQ.

Did the actions of Thatcher lead to the breaking of Trade Union power?  To an extent, the answer must be Yes.  However, for an interesting view see Did Thatcher break the trade Unions?   It may be that Union influence and power was eventually bound to decline due to what would now be known as 'globalisation.'  Some Unions - despite doing excellent work for their members in many areas - had behaved like dinosaurs in their failure to adapt to the changing world.  Maybe all the Thatcher government did was give them a shove in the direction they were already going.

In their book Freedom under Thatcher, Keith Ewing and Conor Gearty traced changes in the law relating to civil liberty which occurred in the 1980s.  These include the rewriting of much of public order law by the Public Order Act 1986.  The book also addresses the form of centralised control of the Police which was introduced to deal with picketing.  The relationship between the individual and the State altered as a result of this and subsequent legislation (e.g. Criminal Justice and Public Order Act 1994 etc) and there is no doubt that the State has gained in its powers to control protest.

It was in 1988 that the Merchant Shipping Act was passed and this led to the incredibly lengthy and costly Factortame litigation.   At the heart of the issue was the supremacy of Parliament v the supremacy of European Community law.  As far as the courts in the UK were concerned, the will of Parliament had to be obeyed.  As far as the European Court of  Justice was concerned, national legislation could not override community law.  Interestingly, the supremacy of community law was well established before the entry of the UK to the communities - Costa v. ENEL (1964), where the ECJ stated, "...the Members States have limited their sovereign rights, albeit within limited fields"and Van Gend en Loos v. Nederlandse Administratie der Belastingen (1963) - "...the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights."  There is a good discussion of the Factortame litigation at Thomas Cooper.

Bruges Speech 1988
Thatcher's attitude to 'Europe' was complex - Thatcher and her tussles with Europe.   Nevertheless, she entered into the so-called Single European Act of 1986.  The Single European Act (SEA) revised the Treaties of Rome in order to add new momentum to European integration and to complete the internal market. It amended the rules governing the operation of the European institutions and expanded Community powers, notably in the field of research and development, the environment and common foreign policy.

During the 1980s, a number of important human rights cases reached the European Court of Human Rights.  Despite this, we did not hear from the Thatcher government any extensive anti-Convention rhetoric and the right of individual petition was not questioned - (today, it is embedded into the convention itself).  Furthermore, although the idea of a British Bill of Rights was mentioned in the Conservative Party's 1979 election manifesto, it did not proceed.  In an interesting post on Euro Rights blog - Margaret Thatcher and the Constitution - Richard Edwards notes:   

' ... in the absence of any domestic forum in which to bring human rights claims litigants went to Strasbourg for justice. The UK soon had the worst record of any Contracting State, often for rather mundane cases. Thus Conservative plans to restore corporal punishment in schools were soon abandoned as a consequence of Strasbourg (Campbell and Cosans v UK [1982] 7511/76). Repeated British refusals to regulate telephone tapping ended with the adverse judgment of the European Court of Human Rights in Malone v UK [1984] ECHR 8691/79. The Interception of Communications Act 1985 followed. Similarly, a young German fugitive by the name of Jens Soering tried to prevent his extradition to the USA on capital charges initially before the English courts and when this was unsuccessful before the European Commission and Court. The rest, as they say, is history.'

A further case against the UK was McCann and others v UK (1995) 21 EHRR 97.  Intelligence suggested a team of known Provisional IRA members (McCann, Savage, Farrell) were planning a bombing in Gibraltar.   One of the team was a known explosives expert while the others had been linked as well as convicted for various explosive and terrorist related activities.  During surveillance, the team crossed the border from Spain with no resistance from the authorities and subsequently parked a car in a crowded place. In previous times, the IRA had employed remote control detonators and intelligence suggested the car was rigged with explosives with the suspects holding the remote detonator.  A team of SAS soldiers was sent to intercept and arrest them on conspiracy charges, in an operation code-named Operation Flavius.  The team, in accordance with their training, shot and killed the suspects which at the time was justified by the teams to be in response to the suspects reaching for what they believed were the detonators. The inquest into the shootings found no breach of Article 2 of the Gibraltar constitution. At the time of the shootings the suspects had neither a detonator nor any explosives. A car was however found registered under one of the suspects names which had been laced with explosive devices of 'ticking time bomb' type and not remote detonators. It appeared that the suspects were on a reconnaissance-mission and had parked their car to save a space for the actual car containing the explosives.  When the case eventually reached the Strasbourg Grand Chamber, the court (by a 10 to 9 majority) found the UK in breach of Article 2 (Right to Life) of the convention.

It is from cases such as McCann that States have come under an obligation to hold Article 2 compliant inquests when State authorities are implicated in a death - (see Article by Jeremy Hyam -  Where inquests raise a question of human rights).

Reference has already been made to Northern Ireland in the context of terrorism and the Diplock Courts.  The relationship of all Westminster governments to Northern Ireland has been exceptionally complex and the BBC is undoubtedly right in saying that her legacy - (and one could add the legacies of others) - is not likely to be resolved any time soon. - BBC 9th April Margaret Thatcher: Heated debate over Northern Ireland legacy.   Thatcher took a tough stance regarding hunger strikes in Northern Ireland's prisons in 1981.  She entered into an Anglo-Irish agreement in 1985 which gave the Irish government an advisory role in Northern Ireland's government while confirming that there would be no change in the constitutional position of Northern Ireland unless a majority of its people agreed to join the Republic. It also set out conditions for the establishment of a devolved consensus government in the region.   The 1989 murder of Northern Irish solicitor Pat Finucane raised troubling questions about collusion between the Police and certain paramilitary groups - see post on Sir Desmond de Silva QC's Independent Review 12th December 2012.

Northern Ireland Assembly
It was not until after the Good Friday Agreement of 1998 that devolved government was properly re-established at Belfast.  The agreement was a remarkable event and owed much to the redoubtable Mo Mowlam MP.   The Northern Ireland (Elections) Act 1998 provided for an Assembly for Northern Ireland and the Northern Ireland Act 1998 provided for legislative powers, appointment of Ministers etc.  After sitting briefly, the Assembly was again suspended in October 2002.  That suspended assembly was dissolved in January 2007 and elections held in March 2007.  The Northern Ireland Assembly was restored on 8th May 2007.


Before concluding this post, I choose to mention two Acts of Parliament from her time in office which have been, in my opinion, particularly beneficial:  the Police and Criminal Evidence Act 1984 and the Children Act 1989.  The 1984 Act was a major restructuring of Police powers and practice and added important safeguards for suspects.  The 1989 Act established a comprehensive framework for handling those desperately difficult cases where children are suffering or at risk of suffering significant harm. 

Poll Tax Riots took place in 1990
After 12 years in power, Thatcher was ousted by her own Party - 'left to the mercy of her friends' as Lord Tebbitt put it - (House of Lords 10th April).  The Conservative government had become very unpopular as a result of the 'Community Charge' (or 'Poll Tax') introduced in Scotland in 1989 and in England and Wales in 1990.   John Major emerged as Party Leader and won the general election of  April 1992 though he had a considerably smaller majority in Parliament.   Community Charge was replaced by Council Tax in 1993.     

Baroness Thatcher died on 8th April 2013.  She was replete with national honours including being a Lady of the Garter.  Parliament was recalled on 10th April and a ceremonial funeral is to be held on 17th April.  For some, the recall and the funeral are steps too far and, for others, they are seen as due recognition of her remarkable career.  She was controversial in office and her passing rekindled the controversies - (e.g. Independent 12th April).  It will be many years before a truly calm and objective assessment of her remarkable and often turbulent years in office can be made and this post is certainly no attempt to do that.  I have sought to look at, albeit briefly, aspects of her policies which influenced the law and which continue to influence our lives today.

Lincoln's Inn where Margaret Thatcher was called to be Bar in 1953

Euro Rights Blog - Margaret Thatcher and the Constitution - Richard Edwards

Margaret Thatcher Foundation

Wikipedia Biography

A further biography with sound track

The funeral:

Bishop of London's address at Margaret Thatcher's funeral

In pictures - Baroness Thatcher's funeral - BBC 17th April

The Telegraph - Margaret Thatcher's funeral

The Independent - Margaret Thatcher's funeral


To me the meanest flower that blows can give
Thoughts that do often lie too deep for tears.
 

7 comments:

  1. Somebody had to take on the union (robber) barons. As one who lived through the 70s "decade of madness" it was very clear the Labour party was never going to be that somebody. Thatcher was that somebody, the pity is it had to be her, as shw was completely empty of humanity and humility.

    My personal view is that she was a wilful, wicked, woman, and nothing I saw in her time in office has changed my view. She was really AWFUL !!

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  2. There's no such thing as society. Thatcher 1987.
    There's no such thing as Thatcher. Society 2013.

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  3. Thank you ObiterJ for a fair and measured bio of MT. I think much of what she did had to be done and although I did not like many of her policies I can well remember the 1984 and 1989 Acts and their effect in the local magistrates' court. What was sad was that our well-designed (adapted) family court suffered from the failure of many lawyers to appreciate the nature of what was being attempted. Even now I am not convinced that some really understand.

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  4. To my mind, the greatest legal battle of her premiership comprised the long running attempts to suppress Spycatcher. These were remarkable for several reasons, in particular the drama of Malcolm Turnbull cross examining the cabinet secretary Sir Robert Armstrong in Sydney concerning the role of the AG in banning the book; Neil Kinnock pursuing exactly the same point at PMQs in London to elicit a contradictory answer from Margaret Thatcher during the overnght recess (down under), and the following morning Armstrong commencing his testimony with an admission that the previous day he had been 'economical with the truth'. Gripping stuff (for lawyers anyway).

    The fun was just beginning as the Govt spent the following two years trying to maintain the ban in England on the basis that to lift it would reveal state secrets despite the book being readily available around the world (including in Scotland that the Home Office appeared to simply overlook). At one stage during this process the Daily Mirror printed the pictures of three Law Lords upside down under the headline 'You Fools', surely the lowest point in public respect for the judiciary in living memory. At the time I assumed that this exercise in shutting stable doors etc simply demonstrated that HL was in the govt's pocket.

    Although having seen exactly the same arguments rehearsed and history repeat itself more recently with regard to naming individuals with superinjunctions, I am now wondering if the issue of open secrets is just a HL/SC blind spot.

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    2. Ah yes - Spycatcher - referred to at Margaret Thatcher and the Constitution - Richard Edwards (link in the post above).

      Could have also mentioned Ponting.

      So many things - had to be selective.

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