Back in 2004, I got rather concerned about the Civil Contingencies Bill (now the Civil Contingencies Act[CCA] 2004) which allows government ministers to obtain absolute power by claiming there’s an emergency, albeit on a temporary but renewable basis. There is very little a Minister could not do under the regulations the CCA allows, though the Human Rights Act and the CCA itself are protected from alteration.
Whilst I maintain that the legal situation regarding the CCA is as I describe above, and that the CCA is a dangerous law that in the hands of a ruthless government could be used to institute a dictatorship, it does seem to me that it is somewhat unlikely to be used this way in practice. It would be a blatantly dictatorial act and would be seen as such by both the British population and the world at large, and thus it would require a government that does not care about the image it gives to the world.
More likely abuses of the powers in the CCA might occur in the event of a genuine emergency — for example using the CCA to enhance the power of the state with laws that then get backing from a manipulated Parliament, using the emergency as cover. Instituting permanent outright rule by decree using the CCA however is unlikely unless we really do get a would be Hitler residing in Downing Street.
Now, however, the government has a bill going through Parliament which would give Ministers the power to amend, modify or repeal any legislation whatsoever via parliamentary order. This bill is the anodyne sounding Legislative and Regulatory Reform Bill, and I’ve covered it in detail over at the Magna Carta Plus blog.
The crux of the matter here is that the bill provides a fast track procedure, lasting a maximum of 2 months, with which the government can push through legislation, at best subject to a single vote in each of the Houses of Parliament. The orders cannot be amended and there is very little opportunity for MPs or Peers to scrutinise the orders concerned. And if the negative resolution procedure is used to pass these orders, a vote would be required to stop the legislation, instead of being required to approve it. Note that, typically, MPs and Peers will get just 90 minutes to debate parliamentary orders before voting them and then will be asked to vote “yes” or “no” — no chance of amendment is offered though the government can revise the orders under the so-called “super affirmative” procedure.
Various Acts already give Ministers powers to issue such orders in variously limited circumstances, e.g. to make regulations or relatively small legislative changes, as secondary legislation. This bill would enable them to make primary legislation via these orders. Not one Act of Parliament is protected from being rewritten this way, where the Civil Contingencies Act is protected from itself and cannot be used to alter the Human Rights Act 1998. The orders could thus be used to remove what flimsy safeguards there are in the Bill as it currently stands and could be used to change any legislation from the “anti-terror” laws to the Scotland Act (which set up the devolved parliament).
The likely result if this legislation is passed seems clear to me. A government seeking to ensure it gets its policies implemented will tie MPs and Peers up dealing with relatively unimportant Acts of Parliament and push their favoured policies through via parliamentary order, using their control of the committees to ensure minimal scrutiny and that their favoured procedure is used (e.g. the negative resolution procedure which requires a vote to stop an order being passed rather than to approve it).
See Spy.org.uk for an example of a Parliamentary order being passed without a vote (it renewed the Control Orders legislation) after a short debate. This bill would allow all legislation to be passed under the same procedures!
Whilst the Bill’s powers are not technically as severe as the powers granted under the CCA, they are an affront to parliamentary democracy and would be a major step towards rule by decree. And because there would still be a Parliamentary facade to the legislative process used, the exercise of the bill’s powers would not look so blatantly dictatorial as the CCA, even though the effect might well be the same.
Given the bill’s powers would be permanent powers, not emergency powers, it could be used to gradually and subtly relegate Parliament to little more than a talking shop. For this reason, it may actually be more dangerous than the CCA in practice.
It is also worth noting that the government has further plans for diminishing the ability of MPs to scrutinise the governments actions and hold the government to account.
Other sites covering this bill include: