The ever vigilant Spyblog has spotted an ‘old friend’ lurking in the bowels of the government’s draft constitutional reform bill (pdf):
It looks as if we will have to again go through all the fuss and lobbying that we saw over the wretched Legislative and Regulatory Reform Act 2006, the previous attempt by this Labour Government to neuter Parliament by Order of a Minister.
Spyblog covers the detail with admirable clarity (and usual), while those of you who recall the last time this wretched clause appeared may remember that this was one of the early examples of blogging having a positive impact on the political process, as it was a tip-off from Tim Worstall (as I recall) that put the MSM on to some of the more pernicious provisions of the then Legislative and Regulatory Reform Bill, which they’d previouly overlooked.
If you’re not up for hacking through the detail, then this letter, which appeared in the Times on 16 Feb 2006 should do nicely as an explanation of why this is a wretched development:
Sir, Clause one of the Legislative and Regulatory Reform Bill (Comment, Feb 15) provides that: ‘A Minister of the Crown may by order make provision for either or both of the following purposes — a) reforming legislation; b) implementing recommendations of any one or more of the United Kingdom Law Commissions, with or without changes’
This has been presented as a simple measure ‘streamlining†the Regulatory Reform Act 2001, by which, to help industry, the Government can reduce red tape by amending the Acts of Parliament that wove it. But it goes much further: if passed, the Government could rewrite almost any Act and, in some cases, enact new laws that at present only Parliament can make.
The Bill subjects this drastic power to limits, but these are few and weak. If enacted as it stands, we believe the Bill would make it possible for the Government, by delegated legislation, to do (inter alia) the following:
# create a new offence of incitement to religious hatred, punishable with two years’ imprisonment;
# curtail or abolish jury trial;
# permit the Home Secretary to place citizens under house arrest;
# allow the Prime Minister to sack judges;
# rewrite the law on nationality and immigration;
# ‘reform†Magna Carta (or what remains of it).
It would, in short, create a major shift of power within the state, which in other countries would require an amendment to the constitution; and one in which the winner would be the executive, and the loser Parliament.
David Howarth, MP for Cambridge, made this point at the Second Reading of the Bill last week. We hope that other MPs, on all sides of the House, will recognise the dangers of what is being proposed before it is too late.
PROFESSOR J. R. SPENCER, QC
PROFESSOR SIR JOHN BAKER, QC
PROFESSOR DAVID FELDMAN
PROFESSOR CHRISTOPHER FORSYTH
PROFESSOR DAVID IBBETSON
PROFESSOR SIR DAVID WILLIAMS, QC
Law Faculty,
University of Cambridge
Start spreading the word, folks.
Also at LibCon
These two provisions are quite fundamentally different, and I think you make a fool of yourself by falling for it. The original power as drafted in the Legislative and Regulatory Reform Bill allowed for an order to be made “reforming legislation” in line with preconditions set out in clause 3 (see http://www.publications.parliament.uk/pa/cm200506/cmbills/111/06111.1-4.html for those preconditions). As part of the normal process of debate the Government accepted that was too wide and restricted it, in the final Act, to “removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation”. That is law already.
This provision in the draft Constitutional Renewal Bill is limited to matters in consequence of the Bill itself. The long title of the Bill is quite specific about what it will do: abolish ss. 132-138 of the Serious Organised Crime and Police Act 2005, make provision for Parliamentary ratification of Treaties, put the Civil Service on a statutory footing, and remove the Attorney-General’s wide power to intervene in criminal cases. If it’s not in consequence of that, no power is given to do anything in the draft Bill.
As I say you make yourself look silly by panicking about what is a relatively routine order-making power. See, for example, the Civil Procedure Act 1997, section 4 for the exact same wording being used in a routine Act: http://www.opsi.gov.uk/acts/acts1997/ukpga_19970012_en_1#pb1-l1g4
Before getting too sanguine, check out the scope of what’s actually in consequence of this Bill – this is far from being a routine order making power when the scope of the bill covers the functions of the Attorney General, appointments to the Judiciary, the management of the Civil Service and the ratification of treaties.
Okay, so they can’t get at Habeas Corpus this time around but the consequential elements in this are far from being routine.
As I wrote in my comment explaining exactly what is in the Bill, there’s really no need to point it out to me. It is a very limited Bill and the order-making power is consequently even more limited. Instead of me being too sanguine, I’m afraid you have been too gullible.
David is right Unity – Spyblog is good but the fear that “they” are always out to get you can take you too far. Part 6 is a fairly standard power to allow tidying up the statute book – to make consequential amendments necessary because the new Act is in force. If it wasn’t there and something was later spotted, a whole new Act of Parliament would be required, which would be a waste of Parliament’s time.
There are countless examples, but there’s section 259 of the Civil Partnership Act:
Power to make further provision in connection with civil partnership
(1) A Minister of the Crown may by order make such further provision (including supplementary, incidental, consequential, transitory, transitional or saving provision) as he considers appropriate—
(a) for the general purposes, or any particular purpose, of this Act,
(b) in consequence of any provision made by or under this Act, or
(c) for giving full effect to this Act or any provision of it.
(2) The power conferred by subsection (1) is also exercisable—
(a) by the Scottish Ministers, in relation to a relevant Scottish provision;
(b) by a Northern Ireland department, in relation to a provision which deals with a transferred matter;
(c) by the National Assembly for Wales, in relation to a provision which is made otherwise than by virtue of subsection (3) and deals with matters with respect to which functions are exercisable by the Assembly.
(3) An order under subsection (1) may—
(a) amend or repeal any enactment contained in an Act passed on or before the last day of the Session in which this Act is passed, including an enactment conferring power to make subordinate legislation where the power is limited by reference to persons who are or have been parties to a marriage;
(b) amend, repeal or (as the case may be) revoke any provision contained in Northern Ireland legislation passed or made on or before the last day of the Session in which this Act is passed, including a provision conferring power to make subordinate legislation where the power is limited by reference to persons who are or have been parties to a marriage;
(c) amend, repeal or (as the case may be) revoke any Church legislation.
(4) An order under subsection (1) may—
(a) provide for any provision of this Act which comes into force before another such provision has come into force to have effect, until that other provision has come into force, with such modifications as are specified in the order;
(b) amend or revoke any subordinate legislation.
(5) The power to make an order under subsection (1) is not restricted by any other provision of this Act.
I don’t recall this abolishing Parliament.
These powers are common, and a scrutinised by the Delegated Powers Committee in Parliament. The fact that it’s the affirmative procedure (requiring a vote in Parliament) should provide even more comfort.
I really suggest you scale back the call to arms, because this is just silly.