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Enabling Tyranny: On the Legislative and Regulatory Reform Bill

Gerbil 001 | 22.02.2006 13:06 | Analysis | Repression

Don’t feel ashamed if you’ve never heard of the ‘Legislative and Regulatory Reform Bill’ currently traversing the Commons. A newspaper database search reveals only 46 mentions of the Bill’s title for the past twelve months – several of which were in such popular journals as Cabinet Maker and Building Design. None of these 46 mentions, incidentally, is earlier than January of this year. The Bill was formerly known as the ‘Bill for Better Regulation’, the title under which it was announced in the Queen’s Speech of May 2005 (there are four additional mentions under this title). It is only in the last few weeks that the bill has had even scant attention in the press. This is something of a shame since, arguably, the Bill is the first step to abolishing the last remnants of parliamentary democracy in Great Britain.

The official purpose of the Bill is to ‘enable delivery of swift and efficient regulatory reform to cut red tape’ (Cabinet Office News Release January 11 2006). So it’s intended to be an Act which enables; one might even go so far as to say an Enabling Act. The News Release continues,

‘The Bill would help deliver a number of the wide-scale reforms announced in the Better Regulation Action Plan in May 2005 - a programme that has been widely endorsed by business, public sector and voluntary sector stakeholders.

‘It would do this primarily by creating a wider law reform power than that in the Regulatory Reform Act 2001. This will allow the Government to deliver reform of outdated or over-complicated legislation more quickly, and enable the mergers of those regulators not currently covered by separate legislation.’

This all sounds relatively anodyne until one considers the ‘wider law reform power’ that the Bill proposes. According to the Explanatory Notes that accompany the Bill, Ministers will be able to make orders that can ‘amend, repeal or replace legislation in any way that an Act of Parliament may do.’

Let’s go over the main points of that again. Ministers will be able to make orders amending, repealing or replacing any legislation. This includes ‘reforming’ or abolishing any body created by statute, including local authorities, the courts, private companies and, since its powers are defined by Acts of Parliament, even the House of Lords. Just think about all of that for a moment.

There are, of course, some restrictions but don’t imagine you’ll be able to take much comfort from them. Clause 5 of the Bill stipulates that Ministers cannot make an order which imposes or raises taxation unless the order is merely restating previous legislation. Clause 6 prohibits a Minister from creating a new offence that is punishable with more than two years in prison. Even here there are caveats, since Clause 6 (6a) states that this restriction does not apply if the provision ‘implements recommendations of any one or more of the United Kingdom Law Commissions.’ Clause 7 prohibits any order that allows search and seizure, forcible entry or compelling someone to give evidence unless, once again, the provision implements the recommendations of the Law Commissions.

The role of the Law Commissions deserves scrutiny. The Explanatory Notes make clear that a Ministerial order can make a provision ‘to implement Law Commission recommendations and to reform legislation where this goes wider than those recommendations’ (original emphasis). Furthermore, while the Notes claim that ‘an order cannot make provision amending, abolishing or codifying common law rules if this is not for the purpose of implementing a Law Commission recommendation’ they also state that a provision may implement those recommendations ‘in full or in part’ or ‘depart from the recommendations’ (my emphasis). Suspiciously vague? I think so.

There are also five preconditions set out in Clause 3 of the Bill, which a Minister must consider before making an order. These are:

That there are ‘no non-legislative solutions which will satisfactorily remedy the difficulty which the order is intended to address.’

‘[T]hat the effect of the provision made by the order is proportionate to its policy objective. This means that the Minister must consider that there is an appropriate relationship between the policy aim of the proposals and the means chosen to achieve them.’

‘[T]hat the provision made by the order, taken as a whole, strikes a fair balance between the public interest and the interests of the persons adversely affected by the order.’

‘[T]hat the provision made by the order does not remove any necessary protection… No order can be made unless the Minister is of the opinion that it would maintain any protections that the Minster considers to be necessary.’

‘[T]hat the provision made by the order will not prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise.’

And there you have it: these are the rigorous, precisely-worded rules which govern the Minister’s judgement. Before enacting any legislation, the Minister must ask himself some very serious and probing questions: am I being reasonable? Do I need to do this? Do I really have to legislate? Am I being careful not infringe anyone’s freedoms? These stringent and robust tests met, the Minister can then apply his rubber stamp.

Finally, by way of safeguards, the Government announced in January that there will be a ‘new super select committee’ that, according to the Telegraph, will ‘have the power to block the lawmaking efforts of all Whitehall departments.’ This Select Committee will, of course, have a Labour Chair (Andrew Miller) and will presumably be as robust and fearsome as all the others (Richard Tyler, ‘MPs ready to curb Whitehall powers’ in the Daily Telegraph January 12, 2006).

But (and allow me to slip, for a moment, into the finest tradition of TV shopping channels) there’s more: Buy this Bill and you don’t just get all of the above. Oh no. The Bill is also subject to its own provisions. In other words, once passed by Parliament, Ministers will be able to amend it, which includes removing the already pitiful limitations about two-year sentences and taxation.

The only thing that I find more frightening than this legislation is the howling silence with which it has been greeted by our ever dogged Fourth Estate. So far, I've read only two substantial articles on it. In yesterday's Times, LibDem MP David Howarth described the Bill as ‘an astonishing proposal’, noting that ‘some constitutional experts are already calling [it] "the Abolition of Parliament Bill"’ (David Howarth, ‘Who wants the Abolition of Parliament Bill?’ in The Times February 21, 2006) while Daniel Finklestein has described how ‘[t]he 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"’ (Daniel Finklestein, ‘How I woke up to a nightmare plot to steal centuries of law and liberty’ in The Times, February 15 2006). In a letter to the FT, Tony Wright, the Chairman of the Commons’ Public Administration Select Committee described the Bill (rather limply) as potentially a ‘significant transfer of constitutional power from parliament to the executive.’ (Tony Wright, ‘Regulation bill's aims are admirable but the transfer of power must be questioned,’ Letters to the Editor, in the Financial Times, February 15, 2006).

Once again, much of the legwork of trying to warn the public is being done outside of the media. In admittedly staid language, the Transport & General Workers’ Union warned in August last year that these proposals ‘to amend or repeal primary legislation will create an accountability gap and a democratic deficit’ and that the putative safeguards above ‘leave far too much discretionary power in the hands of ministers.’ On a wider point, the T&G expressed their dismay that ‘the proposals for regulatory reform are cost driven and designed primarily to meet the needs of business rather than protect workers, consumers, citizens and the environment.’ The Green Party, to their credit, issued a Press Release about this yesterday, in which they cite the views of Cambridge Law Professor, John Spencer, who argues that it could be used to ‘introduce house-arrest, give the police stronger powers of arrest and interrogation, set up new courts, and in effect re-write the rules on immigration, nationality, divorce, inheritance and the appointment of judges - all without democratic scrutiny.’ Yet, as the Green Party’s Principal Speaker, laments, while its impact on our constitutional liberties will be immense, hardly anyone knows about it.

The official motivation behind this bill is also highly suspect. Supposedly, the process of regulation needs to be ‘streamlined’ in order to make it more effective and do away with excessive red tape (the clarion call from every CBI conference that I can recall). According to the Government, the process of deregulation is so cumbersome that Parliament cannot cope. However, as Finklestein argues,

‘What does this argument, used often by the minister during last week’s debate, amount to? An admission that we are now passing so many new laws, so quickly, and so many of them are sloppy, that we don’t have time to debate them properly or reform them when they go wrong. Parliament is drowning in a sea of legislation. Instead of calling a halt to this, the Government is seeking a way of moving ever faster, adding yet more laws, this time with even less debate’ (Finklestein op. cit.)

Almost 2000 years ago Tacitus remarked that the more numerous the laws, the more corrupt the government. The idea that we need more laws but that, in order to enact them, we need less scrutiny and more executive autonomy is deeply worrying. Indeed, the proliferation of laws in itself should be resisted. Firstly, and this should be obvious, because we never need to make the case against a law. The burden of proof for any imposition always lies squarely with the Government. Secondly, this new bill –which represents further capitulation to business and further restriction on Labour- arguably chimes chillingly with two of the common characteristics of fascism identified by the political scientist Lawrence Britt: the protection of corporate power and the suppression of Labour.

The Legislative and Regulatory Reform Bill received its Second Reading on Friday and will now go on to the Committee Stage. The scope of the Bill is sweeping, its implications are frightening and its potential for abuse enormous. Once passed, it appears that the only brake on its being stripped of even its few feeble ‘safeguards’ is the decency and restraint of Government. Even if one trusts the current lot (and why the hell should we?) as an Act it will sit there waiting to be exploited. Once this happens it may be too late. Unless we are willing to trust our current spattering of jellies to protect us from executive caprice, anybody with any concern for liberty should be doing whatever they can to oppose the Bill’s passage into law. We must demand that our MPs oppose this dangerous Bill and, more importantly, we have to compensate for yet another miserable failure by ‘our’ media to even warn us that the threat exists. In other words, let’s make sure that this obscure little bill stays obscure no longer.

(This article originally appeared on the Many Angry Gerbils weblog. To read the original, which contains full references, please visit the link. )
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  1. Democracy, Not! — seditionaire