Principles like fairness and equality of opportunity are uncontroversial. They are embraced (in public at least) by politicians and commentators across the whole political spectrum – but we are surrounded by gross inequality which, to a large extent, is caused or exacerbated by derelict laws. faq
At the root of this is a constitutional failure: the fact that there is no requirement for the edifice of law to be coherent.
When legislation creates injustice which only becomes clear with analysis, governments can easily neglect putting it right – particularly where the beneficiaries of the flawed legislation are well organised, but the losers are dispersed and may not understand how specific legislation is unfair to them. In such circumstances, where reform would upset an identifiable group, politicians commonly avoid tackling problems unless the public are agitating about them. This can apply to freshly minted legislation but it also applies to long-established laws which shape society at the most fundamental level. faq
If it needs a vigorous expression of public dissatisfaction for Parliament to address unsatisfactory legislation, then the only wrongs that will be redressed will be those that are either uncontroversial or obviously detrimental to a significant part of the electorate. What is needed is a mechanism to identify areas where the law is incoherent in less obvious ways and push legislators into implementing reform. faq
The main feature of Local Sovereignty’s proposal is for a constitutional requirement that laws be consistent, where possible, with generally accepted, uncontentious principles (such as equality of opportunity): we propose that, when they encounter an incompatibility between statute law and fundamental principles, the courts would be expected to assume that it is inadvertent and should make a Declaration of Incompatibility (as they do currently for laws which are inconsistent with the Human Rights Act), inviting Parliament to clarify its position. If Parliament declares unequivocally that the incompatibility was intended, then the courts would continue to enforce the law as they do today (but would be able, with the approval of a jury, to initiate a referendum on the matter). If Parliament ignores the issue, however, then the courts would be empowered to treat that area of law as having been abandoned by Parliament and introduce appropriate reforms themselves. faq
A secondary feature of this reform would be the introduction of a duty for the courts and legal professionals to help maintain the integrity of law. more