If this Bill becomes an Act it will mean that the Government will be able
(should this pernicious legislation ever make it onto the statute Book) to
amend or replace legislation of more or less any kind by Ministerial order,
without going through the troublesome procedure of presenting the changes as
proposals before Parliament and the even more troublesome procedure of
trying to get a majority there.
Andrew Miller, Labour MP for Ellesmere Port and Neston, who was on the Pre-legislative Committee which considered the Bill says...
This bill must be scrutinised with particular care. Our report recognises
that there is widespread support for removing redundant regulation and
costly red tape. But the problem many people will have with part one of this
bill, as drafted, is that it provides ministers with a wide and general
power that could be used to repeal amend or replace almost any primary
legislation. That can't be right. We need extra safeguards.
Danny Finkelstein is even more graphic...
In my nightmare, Tony Blair finally decides that he is fed-up with putting Bills
before Parliament. He has so much to do and so little time. Don’t you realise
how busy he is? He’s had enough of close shaves and of having to cut short trips
abroad. He decides to put a Bill to End All Bills before the Commons, one that
gives him and his ministers power to introduce and amend any legislation in
future without going through all those boring stages in Parliament. That’s not
the end of my feverish fantasy. The new law is proposed and hardly anyone
notices. John Redwood complains, of course, and a couple of Liberal Democrats,
but by and large it is ignored. The Labour rebels are nowhere to be seen. The
business lobby announces that it is about time all those politicians streamlined
things, cutting out time-wasting debates. In a half empty Commons chamber, a
junior minister puts down any objections with a few partisan wisecracks. Then
the Bill to End All Bills is nodded through the Houses of Parliament, taking
with it a few hundred years of Parliamentary democracy. I wake up, sweating.
Only one thing persuades me that I’m not cracking up. When I have my nightmares
about the Bill to End All Bills, I am not dreaming about dastardly legislation
that I fear a cartoon Tony Blair, with an evil cackle, will introduce in some
terrible future. I am tossing and turning about a government Bill that was given
its second reading in the House of Commons last week and is heading into
committee. Now I know what I am about to tell you is difficult to believe
(Why isn’t this on the front pages? Where’s the big political row?) but I
promise you that it is true. The extraordinary Legislative and Regulatory Reform
Bill, currently before the House, gives ministers power to amend, repeal or
replace any legislation simply by making an order and without having to bring a
Bill before Parliament. The House of Lords Constitution Committee says the Bill
is “of first-class constitutional significance” and fears that it could
“markedly alter the respective and long standing roles of minister and
Parliament in the legislative process”.
It is an indictment that virtually the only place you will ever read anything about this is on a few blogs. As far as I know it has hardly been mentioned in the national media (but no doubt you will correct me!), let alone on the Daily Politics, This Week, The Politics Show etc. As far as I can tell, the only comment from the Conservatuves on the Bill has been by Alan Duncan on the deregulatory aspects of it, rather than the legislative side.
A final non-rhetorical thought from Danny Finkelstein...
The Legislative and Regulatory Reform Bill isn’t just a dangerous proposal.
It is a flashing red light. Our legislative activism is endangering our
parliamentary democracy and we must stop before it’s too late. Or am I a nutter?
I'm just waiting for the Palace of Westminster to be burnt to the ground. Parliament will start meeting at the Royal Opera House. The bill will be passed to the sounds of Labour party supporters chanting "fire and murder" in the foyer and the strains of Horst Wessel in the background...
part of the problem is the damnably slack drafting that goes into these bills - for a good summary see http://partyreptile.blogspot.com/2006/02/real-problem.html
Yes, this is enormous in its implications. However, it won't get much airtime/many column inches now because it is quite dry and technical.
I forecast that the wailing and gnashing of teeth will only start when the government actually uses these powers to force through controversial changes on an emotive issue.
You have contacts in the media and in tory hq... have you considered making a fuss yourself?
It is the first i had heard of this issue. One of the virtues of the British Parliamentary system is that outdated and anachronistic legislation can be repealed via consolidation Acts etc far more straightforwardly than in many other countries (eg the US).
SI's can of course be prayed against (unless this Bill goes even further than the post leads me to believe), but it is surely fundamental that Parliament is soverign and Acts of Parliament can only be abolished via Parliament.
My favorite boilerplate for doing so is the Book of Common Prayer:
"Where at the death of our late Sovereign Lord King Edward the Sixth, there remained one uniform Order of Common Service and Prayer, and of the Administration of Sacraments, Rites and Ceremonies of the Church of England, which was set forth in one Book, intituled, The Book of Common Prayer, and Administration of Sacraments, and other Rites and Ceremonies in the Church of England, Authorized by Act of Parliament, holden in the fifth and sixth years of our said late Sovereign Lord King Edward the Sixth, intituled, An Act for the Uniformity of Common Prayer, and Administration of the Sacraments; The which was repealed, and taken away by Act of Parliament, in the first Year of the Reign of our late Sovereign Lady Queen Mary, to the great decay of the due honour of God, and discomfort to the Professors of the Truth of Christ's Religion:
Be it therefore Enacted by the Authority of this present Parliament, That the said Statute of Repeal and everything therein contained, only concerning the said Book and the Service, Administration of Sacraments, Rites, and Ceremonies contained or appointed in or by the said Book shall be void and of none effect, from and after the Feast of the Nativity of Saint John Baptist next coming."
Actually i'm not convinced having had a quick scan of the Bill itself that it is quite as apocalyptic as is being suggested. Certainly the comparision to Hitler's Enabling Act is hyperbolic rubbish. Will this be treated as a constitutional Bill and subject to going through its Committee stage as a Committee of the Whole House? This is usually a simple way of clarifying quite how fundamental the provisions are.
Quote from Winston CHURCHILL, The First Conservative Election Broadcast, 4 June 1945
"Socialism is, in its essence, an attack not only upon British enterprise, but upon the right of the ordinary man or woman to breathe freely without having a harsh, clumsy, tyrannical hand clapped across their mouths and nostrils. A Free Parliament - look at that - a Free Parliament is odious to the Socialist doctrinaire. Have we not heard Mr. Herbert Morrison descant upon his plans to curtail Parliamentary procedure and pass laws simply by resolutions of broad principle in the House of Commons, afterwards to be left by Parliament to the executive and to the bureaucrats to elaborate and enforce by departmental regulations?"
Full text here
I also think (having been alerted to it by Finkelstein's column and now actually read the Bill) that it is pretty fundamental and wide ranging. We now have the most dictatorial nannying government in history, with no care for minority rights (witness the hunting ban, smoking ban, 30 day detention) which is now also attempting to give itself the widest ranging powers in history to simply legislate without involving Parliament. It is also a disgrace that the Conservative Party is not being stronger in standing up for parliament and freedom. The last week or so has left me very depressed for the future of this country.
Presumably you have read the bill. What do you think of the provisions in clauses 13-16, and the requirements of the super affirmative resolution procedure?
I'm looking particularly at "The Minister may after the laying of such a statement make an order in the terms of the draft **if it is approved by a resolution of each House of Parliament**."
As I understand it the Minister proposing the order gets to recommend whether it goes through the super affirmative resolution procedure, the affirmative resolution procedure or the negative resolution procedure.
The latter seems to be a case of Parliament having a window of time to spot an order they don't like the look of and get it put to a vote- sort of "speak now or forever hold your peace." As I know nothing about the practiical workings of Parliament, I can't guess how this will work out in practice, but it seems to put a high onus on MPs, lobby groups etc to sift through draft orders and weigh up the implications before they are passed by default.
That's just my own reading of the bill- I'd be interested in other interpretations.
From clause 13 (3) :
"Where the Minister’s recommendation is that the negative resolution procedure should apply, that procedure shall apply unless, within the 21-day period— (a) either House of Parliament requires that the super-affirmative resolution procedure shall apply, in which case that procedure shall apply"
It's up to Parliament (either House) not the minister.
"The latter seems to be a case of Parliament having a window of time to spot an order they don't like the look of and get it put to a vote"
Exactly. Parliament can vote on any order, so I don't really understand how it can be argued that this Bill prevents Parliament from, erm, voting on the orders. They might choose not to, but in that case I am struggling to see the problem.
Clause 13(1) provides that the explanatory document laid with a draft order must contain a recommendation by the minister as to which of the three procedures should be followed. Then as you say, if the Minister recommends the negative resolution procedure, either House can within the 21 day period insist that the super-affirmative procedure shall apply. I'm not sure that is different from what I originally suggested?
So yes, either House can insist on a vote but the impetus is on the order being passed -to use an analogy it seems like reversing the burden of proof from "innocent until proved guilty" to "guilty until proved innocent".
I am 60 years old and have never been politically active. This issue, however, has caused me such great concern that I have decided that I MUST do something. I've added a page to my personal web site (www.davidcowen.me.uk) and am encouraging christian organisations, such a The Christian Institute, to get moving on the issue.
As I understand it the real difference between a bill and secondary legislation is that the latter is not necessarily brought to the floor of the house. With other reasonable duties the secondary legislation order might well be missed my interested MPs, whereas a bill, with time programmed in for debate is more likely to be spotted.
One safeguard in my opinion would cure the problem with this bill: any draft order must be laid before a committee, either one member of the committee or ten MPs can veto the regulation from going through without full debate.
At the end of the day a Govt with a majority can get it's way on anything, but there is debate and a record kept, that is all we can or should hope for with RRO procedures.
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