This (via) seems to be in the early stages of becoming a righteous ire-creating cause celebre amongst the civil libertarian and/or anti-Blair parts of the blogosphere: see here and here, for example. I think this might be based on a mistake. I am fairly sure that it may be an attempt to tidy up the use of statutory instruments, because of the restrictions which the content of section 4 makes:
(1) Provision under section 2(1) may not confer a function of legislating on a Minister of the Crown (alone or otherwise) unless the conditions in subsections (2) and (3) are satisfied.
(2) The condition in this subsection is that the function is exercisable by statutory instrument.
(3) The condition in this subsection is that such a statutory instrument—
(a) is subject to annulment in pursuance of a resolution of either House of Parliament; or
(b) is not to be made unless a draft of the statutory instrument has been laid before and approved by a resolution of each House of Parliament.
Section 2 (1) is the one which grants the power to make
[a]n order under section 1 may for either purpose specified in subsection (1) of that section make provision amending, repealing or replacing any legislation.
So that power presumably only applies to statutory instruments, which are bits of legislation granting the Crown discretionary powers. Since the discretionary powers granted through statutory instruments are already limited by the primary legislation they are a part of, which the bill would not grant the power to alter, this wouldn't, if I am right, grant huge powers it doesn't already possess to the Crown. Unfortunately, as satisfying as it would be for this to be a neat next escalating step in a trajectory of much-railed-against creeping totalitarianism, I don't think it is.
Update, 18/02/06: There's a Clifford Chance client brief on the Bill here, which does make it seem quite worrying. The gist seems to be that there has been pressure on Government to amend regulation without the lengthy process of new primary legislation for some time, and that the Bill is the latest in a series of attempts stretching back to the mid-nineties to do so. However, it goes further than any previous legislation by removing or attenuating the safeguards of limitations on the content of the legislation that could be passed in this manner, requirements for consultation and scrutiny by committee, and a prohibition on the use of the powers granted to create powers to make further delegated legislation. In particular, the brief claims, plausibly I think, that the last of these three restrictions is absent from the Bill. All this is very worrying, for although all orders under this legislation would have to be approved by Parliament by simple up-and-down votes, the lack of time for consideration available and the difficulty and in some cases impossibility of amending the orders would seriously impede Parliamentary oversight. I do find it somewhat ironic though that in an environment which creates substanial opportunity for the exploitation of supposedly existential threats, it is, if anyone does, plagues of well-meaning bureacrats brandishing forms that play the role of van der Lubbe.
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9 comments:
I hope you're right.
One Commons select committe seems to disagree
I think Andrew Miller's wrong, if he means that whole swathes of legislation could be repealed or amended. To the extent that parts of almost all primary legislation could be changed, he's right, because almost all primary legislation contains statutory instruments. And neither is that to say that this isn't bad: I'm fairly sure it's not a good idea to allow the state to get to revise, albeit probably within limits, the terms on which it exercises discretionary power. But it's not the Reichstag fire, and the over-reaction's not helpful.
@ Robert Jubb - read the Bill again. It does not just apply to Statutory Instruments, it applies to "any legislation" to Acts, to SIs, to Regulations and, according to the Explanatory Notes, it can also amend the rule of Common Law as well.
There are no exmptions such as any of the "constitutional" Acts which were proposed to be made exempt under the Civil Contingencies Act 2004 Part 2 Emergency Powers, which the Government rejected e.g. Magna Carta, the Bill of Rights or the European Community Acts. Even the Civil Contingencies Act ended up being amended to prevent it from being used to amend the Human Rights Act and also to prevent it from amending the Civil Contingencies Act itself.
There are no such safeguards in this Bill at all.
There is nothing in the wording as it stands, which would prevent a future Minister from arbitrarily extending and broadening the scope and extent, by Order, of say, the definition of terrorism, something which would not require the creation of new criminal offences which are limited to 2 years in prison, but which already attracts a possible life sentence.
Watching Them, Watching Us,
it's not complicated. Either you deny that what I quoted is part of the bill, or you agree that there are quite clear limits on the legislative power this would grant the executive. On your example of being able to alter the definition of terrorism, this would depend on whether or not the power to define terrorism has been assigned to the executive as a statutory instrument. I don't know whether it has, but I would seriously doubt it.
If all that the Executive were going to do was to repeal, amend or replace existing Statutory Instruments allowed under existing Acts of Parliament, then there would be no need for this Bill at all.
They would simply issue another Statutory Instrument under whatever Primary legislation that gave them the power to issue an SI in the first place.
The only "clear limits" on the power of the Executive in the Bill are the ones which prevent it being used to raise new taxes, or new criminal offences of more than 2 years in prison, or to allow new powers for the forced entry into premises.
Those are insufficient safeguards in a democracy.
I agree that there is no need to paint this Bill as a "Reichstag fire", we already have the Civil Contingencies Act 2004 on the statute books, whereby a State of Emergency can be declared orally by a Minister, and where Emergency Regulations have the full power of a Primary Act of Parliament and any exercise of the Royal Prerogative.
For all their obvious faults, I doubt if the current Government would knowingly abuse these powers, but why should we literally create "a rod for our own backs" in the future ?
"They would simply issue another Statutory Instrument under whatever Primary legislation that gave them the power to issue an SI in the first place"
Yeah, actually, that sounds like it should be right. Sorry for being arsy about it. Which then leaves the question what the restrictions here are for - they are restrictions, I'm not ceding on that.
Subsection 2 restricts the power to functions which are exercisable by statutory instrument. Presumably, there is some legislation which sets out what can and cannot be done by statutory instrument - the legislation which first created them, I'd have thought. Unless the powers exercisable through statutory instrument are simply whatever powers have thus far been exercised by statutory instruments, although that would then return it to the weirdness you already pointed out.
Subsections 3(a) and (b) place further limits, though. (a) makes the power vulnerable to a resolution in either House, and (b) requires an up-down vote on a draft - I know, only a draft - in both Houses.
As for the Civil Contingencies Act, I'm sure that there are restrictions on the circumstances in which a State of Emergency can be declared at ministerial whim. Indeed, it is perhaps not wholly unreasonable for the executive to have the power to declare a State of Emergency: in the case of invasion, for example. That doesn't mean that it's not very worrying, of course, as it may be somewhat difficult to show abuse of a State of Emergency during a State of Emergency. That alone may be enough to make it impermissible to have such powers.
I have read the Bill and I am somewhat confused by it. But if the powers in the Bill are limited to statutory instruments as claimed, why the need to state explicitly that tax raising, serious criminal offence creating, and forced entry are outside its scope?
If these areas are outside the scope of SIs it's a tautology to include them in the Bill as specific areas that won't be affected. On the other hand if they are within the scope of SIs then they can be altered by a minister through the appropriate SI mechanism and the apparent constraint is pointless.
Either we have a bill that is far more wide-ranging than a tweak of the SI system, or we have a really shit piece of drafting.
I'm going to go with it's a really shit piece of drafting. I confess to being more or less totally confused about the whole thing now. There are only two things I can think of that the restrictions might be to do with: European legislation, which, I understand, is often incorporated in British law through statutory instruments, and cases, which may not exist at all, where statutory instruments have strange conditions attached to them, which it'd be convenient to get rid of. But to be honest, parliamentary procedure is not a strong point, so I'm a bit baffled. I may seek the advice of a lawyer I know and see what he thinks.
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