This is a past event
Criminal Law's Legitimacy Problem
Speaker: Professor Fiona Leverick
Abstract
Since 2010, I have been working (with James Chalmers) on a project examining the creation of criminal offences in the UK. The research has focused on mapping the creation of criminal offences both contemporaneously and via a historical analysis of every decade since the 1950s. It has revealed that vast numbers of criminal offences have been created by successive governments that far exceed any previous estimates.
In my seminar paper, I plan to discuss one aspect of the project which is the process by which criminal offences are created. One particularly significant (and unanticipated) finding of the research is that most new criminal offences are created not by Parliament but via secondary legislation. These offences receive next to no scrutiny by our elected representatives as they are contained in Statutory Instruments, the vast majority of which are made via the negative resolution procedure. The offences created in this way include some with very heavy maximum penalties – often imprisonment.
This presents a significant challenge to the legitimacy of the criminal law and the paper will consider whether it is something that should concern us. The Law Commission, in its Consultation Paper Criminal Liability in Regulatory Contexts, argued that the creation of a criminal offence should be regarded as a “law-creating step of great constitutional significance” and proposed that offences should be created only by primary legislation. Others have gone further and argued that criminal offence creation should require some sort of parliamentary super-majority. Putting these recommendations in place in practice, however, would present serious practical problems in terms of parliamentary time so it may be that other ways of achieving legitimacy need to be considered. To this end, the paper will also look across to the US and Germany to see if lessons can be learned from practice there.
- Hosted by
- School of Law
- Venue
- New King's NK3