Legislative and Regulatory Reform Act

My take on this is now up at the Magna Carta Plus weblog.

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Some news items

Here’s a brief roundup to help catch up on recent developments in various areas:

Anyway that’s all for now.

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Why the Legislative and Regulatory Reform Bill is worse than the Civil Contingencies Act

I’ve posted this article on Magna Carta Plus as well as here. It follows up on my earlier article on the government’s new enabling bill.

In my earlier coverage of the Abolition of Parliament Legislative and Regulatory Reform(LRR) Bill, I think I have underestimated how much power it gives to government ministers. I now think this bill actually gives more power to government ministers, in practical terms, than the Civil Contingencies Act (CCA).

The CCA explicitly gives Ministers both the powers of legislating via an Act of Parliament and the powers of the Royal Prerogative. However those powers are supposed to be invoked only in an emergency, are time limited to 7 days, albeit renewable, and have various other constraints such as not modifying the CCA itself or the Human Rights Act. There are protections for the courts and criminal offences created under CCA regulations can carry only 3 months imprisonment.

The possibility that the LRR is worse than the CCA was pointed out to me when discussing the bill in this thread on the usenet group, uk.politics.misc. One poster makes the following points:

  • The LRR is designed ostensibly to be used in the normal course of governing, where the Civil Contingencies Act (CCA) is supposed to be used only in emergencies.
  • The LRR can amend any legislation, where the CCA cannot be used to alter the CCA itself or the Human Rights Act.
  • The LRR can be used to delegate legislative power, without apparent limit, to anybody the specified in an appropriate order.
  • The LRR can be used to alter or abolish any rule of law.

The key matter I hadn’t considered fully before is this. The orders under the LRR can be used to confer legislative power on Ministers, such that they would then be able to legislate without any reference to Parliament at all. Given the government’s ability to control Parliamentary procedure (e.g. to ensure the negative resolution procedure is used), it would be possible for such a transfer of power in the favour of Ministers to occur without any vote in Parliament occurring!

This transfer could be achieved by sneaking the measure into a suitably large and convoluted order that implements a policy strongly backed by the governing party, and hoping it will either not be noticed due to the lack of time for scrutinising the order (this lack of time being arranged by the government) or if it is noticed it will be allowed through because the governing party’s MPs and Peers do not wish to abandon a key policy.

Remember there is no possibility for making amendments that would allow MPs or Peers to selectively modify problematic areas of the parliamentary orders. At best a request to revise the order can be made to the government which the government can consider and reject, or for that matter implement in any way it pleases. The Ministers will be in control at every step unless MPs or Peers vote the order down in its entirety.

I thus fear that if this bill passes we will not only see increasing amounts of legislation passed via parliamentary order with little or no scrutiny, but we will see Ministers being given increasing powers to legislate directly without reference to Parliament. The bill really should be entitled the Abolition of Parliament bill. The Abolition of Parliamentary Scrutiny Bill moniker I’ve been using in some posts is thus too mild a description of the threat this bill makes to Parliament’s role.

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Another enabling bill…

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:

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