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13 February 2006



I must admit to only having skim-read the bill when first commenting on it but having had time to look it over properly it is, on one level, not quite so bad as it appears on first sight and yet, on another, infinitely worse that it appears.

I think the biggest concern I have is its likely future impact on law-making - as written it stands as an open invitation to put an end to legislative clarity in all but those matters which are exempted from the powers conferred under this bill.

What the bill actively encourages is greater and greater use of enabling bills which serve only to increase the scope of Ministerial powers at the expense of Parliament - one can well see us reaching a position where the vast majority of legislation does little but set up insubstantial legal frameworks that ministers can then populate with regulations using the provisions of this bill - it's net effect being entirely obfuscatory.

As such, it remains a pretty loathsome piece of legislation - more so as having read the second reading debate the standard response of ministers to any questions about safeguards has been 'we don't need them because we would never use these powers in that way anyway'.

Watching them, Watching Us

The Government totally rejected the constitutional safeguards reccmmended by the Joint Committee on the Draft Civil Contingencies Bill which scrutinised the other huge "Henry VIII powers" Bill, which became the Civil Contingencies Act 2004.


Why would the Government bother to implement any of these suggested safeguards, when their attitude is that "a Minister is always deemed to act reasonably" ?



Thank you for pointing us all at the House of Commons Regulatory Reform Committee: Legislative and Regulatory Reform Bill, First Special Report of Session 2005-06 (at
http://www.publications.parliament.uk/pa/cm200506/cmselect/cmdereg/878/878.pdf). But far from allaying the misgivings expressed by a number of us in various blogs (and now by Daniel Finkelstein and six eminent Cambridge law professors in today’s Times), that document seems to me to reinforce and aggravate them. For example, from the Summary, page 5:

“The Legislative and Regulatory Reform Bill [HC111 ], which is expected to have its Second Reading on 9 February, has the potential to be the most constitutionally significant Bill that has bee brought before Parliament for some years. It needs to be scrutinised with particular care. ... In broad terms, Part 1 of the Bill provides Ministers with a wide and general power to amend, repeal and replace all primary and secondary legislation, including legislation that may have been approved recently. There are few limits to this power. As with Regulatory Reform Orders (RROs), this power will be exercisable by means of Ministerial orders, but, it is now proposed that it will sometimes be subject to only negative resolution procedure. The Bill also provides Ministers with the power to change the common law by order. ...

“Like the 2001 Regulatory Reform Act (RRA),which the Bill will replace, the Bill provides certain safeguards, but compared with the RRA, these safeguards and limits have generally been significantly reduced. For example, unlike under the RRA, the scope of the power will not be limited by a requirement on the Minister to identify "burdens" that will be removed or reduced. Also Ministers will not be prohibited from repealing, amending or replacing legislation that is less than two years old or from making orders that themselves sub-delegate the power to legislate. As under the RRA, the orders will be scrutinised by parliamentary committees... But compared with the current procedures, the Government is proposing a fast track procedure for some orders without including a converse power of the Committees to reject an order on the grounds that it is inappropriate for secondary legislation. It is expected that what safeguards are provided will be reinforced by Ministerial assurances. Overall, the proposed safeguards that are in the Bill are important, but in our view they are unlikely to provide sufficient counterbalance to the increased Ministerial powers that the Bill provides...”

I don’t find anything at all reassuring in that: indeed, unless all the most radical of the Committee’s recommendations are accepted unchanged by the government, which seems to me unlikely in the extreme, I’m more than ever convinced that this is a Bill to be fought tooth and nail. As well as the blog posts that you quote, please also see my own new post at http://www.barder.com/ephems/?p=442, and the documents to which it links.



PS: In my immediately preceding comment (above), I oimitted to give the reference to the very sobering letter in today's Times from the six Cambridge law professors. It is http://tinyurl.com/82ylv .

Obligatory reading!


Ronnie Smartt

Sorry, Tony, I still wake at q very early hour and wonder what is going on. The powers to be given to Ministers seem to me to be very widely drawn, almost without restriction except in respect of penalties, and quite disproportionate to the rather limited opportunities which Parliament has to scrutinise subordinate legislation, as Ministerial orders would be. Nor do I think that the Select Committee's proposed changes would be a sufficient improvement. I do not jump immediately to the conclusion that this Bill is intended to put us under the tyranny of a bunch of Ministers - yet - but it does devalue Parliamentary democracy. I think I shall try Horlick's.

Tony Hatfield

At the moment we have a Bill. I do not think this is acceptable as it is. The required amendments are all there in the Select Committee's Report.
I hope the government will sit up and listen- or at least our representatives in Parliament.
Perhaps the Hatfield optimism is showing through.

Ronnie Smartt


i am sorry to have to continue in disagreement with you. I still think that the powers to be given to Ministers are too wide even if the extra safsguards recommended by the Committee were implemented. We might do well, if we wish to give Ministers a little more power, to have a constitutional body - and see also my recent note on schools legislation - which could distinguish between the incidental minor and the new major.

Tony Hatfield

No need to be sorry about anything. Polite debate is stimulating.
Perhaps you are right, but these powers have always been given to ministers. I remember whilst studying Constitutional Law writing a piece on an Act of Parliament that contained only one section-granting power to the Minister to make regulations under the act. Don't ask me which one it's way toooooooo long ago!
I do concede your suggestion had merit. I suspect if Peter Harvey entered this discussion, he would be muttering "written constitution" or "constitutional court"

Ronnie Smartt

But surely making regulations for specific subordinate purposes under an Act is quite different from "reforming (unspecified) legislation" generally and implementing Law Commission Reports generally? This basically, I think, is the objection of the Six Cambridge Professors quoted in Brian's Ephem. They certainly emboldened me to think that my suspicions might be justified, though I do try very hard to see goodness and honesty in what our Government does. Otherwise what would be the point of democracy? This is why this Bill so disappoints me, because it suggests a Government trying to sneak in not just a sliver but a whole plenum of power without the traditional safeguards.

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