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The scope of orders issued under Blair’s latest enabling bill

Posted by James Hammerton @ 8:09 pm on 5 March, 2006.
Categories democracy and the rule of law.
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Following on from my earlier overview of the Abolition of Parliamentary Scrutiny Bill Legislative and Regulatory Reform Bill, I consider here the scope of the orders that can be issued under the bill.

Essentially, the bill provides a fast-track procedure for passing almost any legislation.The preconditions listed in section 3 are all down to the Minister’s judgement and therefore what they claim to be the case. For this reason, it seems to me that they will not stop a Minister making whatever provision he deems fit to make via this process.

The other non-procedural restrictions are more meaty, but they only restrict the powers to impose or raise taxes, the sentences one can place on newly created offences and the ability to legislate on devolved matters or to create new powers of forced entry. They do not, for example, prevent the Scotland Act being rewritten (thus redefining what matters are devolved!) or changes being made to the Human Rights Act. Even with the restrictions on powers of forced entry, apparently the extending of such powers is allowed if it is done for similar purposes as the original powers were brought in for — I predict the use of highly creative interpretations of the word “similar” here.

As far as I can tell therefore, none of the following would be prohibited by the non-procedural restrictions or anything else in the Bill:

  • altering the procedure used under this bill so that e.g. only the negative resolution procedure is used.
  • “reforming” section 1 of the Terrorism Act 2000 to give a new definition of terrorism.
  • “reforming” the Civil Contingencies Act to make it easier to invoke and removing its protections from modification for the Human Rights Act and the Civil Contingencies Act itself.
  • “reforming” the Human Rights Act.
  • “reforming” the Parliament Acts which set out the procedure by which the House of Commons can override the will of the House of Lords.
  • conferring powers on Ministers to appoint and sack judges at will.
  • “reforming” the Prevention of Terrorism Act 2005 to allow the Home Secretary to impose control orders on his own authority, without the courts intervening, as was originally intended when the bill was first published.
  • removing awkward amendments forced on the government during the passage of any contentious bills.
  • creating an offence of displeasing the government, carrying a sentence of up to 2 years in jail.
  • rewriting the laws relating to just about any matter.

Clearly with such a broad scope for legislating via these orders, it is crucial for there to be adequate Parliamentary scrutiny of them, which leads us on to the procedure by which such procedures are pushed through Parliament, which is the topic of the next article in this series.

Overview of Blair’s latest enabling bill

Posted by James Hammerton @ 7:52 pm on .
Categories democracy and the rule of law.
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This is the first of three articles on the Abolition of Parliamentary Scrutiny Bill Legislative and Regulatory Reform Bill currently going through the British Parliament, the second and third articles will look at the implications of the bill covering the scope of the bill and its likely impact on the legislative process in the UK. This article provides an overview of the bill which you can see online here.

Part 1 of the Bill gives Ministers of the Crown wide ranging powers to legislate via parliamentary order. Indeed they seem to get the power to legislate via parliamentary order subject only to the following restrictions:

  • the Minister must consider that the following conditions are satisfied (section 3) [I’m excluding the stuff about “restating” legislation as this is relatively unimportant, as far as I can tell]:
    • the policy objective intended to be secured could not be satisfactorily secured by non-legislative means,
    • the effect of the provision is proportionate to the policy object,
    • the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it
    • the provision does not remove any necessary protection,
    • the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.
  • they cannot impose new taxes or raise taxes (section 5).
  • they cannot create criminal offences that carry more than 2 years in prison as punishment or raise the tariffs on existing offences above that limit (section 6)
  • they cannot create new powers of forcible entry or compel the giving of evidence — except when extending a power for purposes similar to those which the power applied before the order was made or when giving effect to recommendations of a law commission (section 7).
  • they cannot legislate in areas delegated to the devolved assemblies (sections 8 and 9, but the wording seems to allow some exceptions)
  • the order must be made by statutory instrument (section 10) and the Minister has consulted those he deems appropriate — it seems to me that the only people he might have to consult are the Welsh assembly and the law commissions, and then only in certain circumstances (section 11).
  • the order must be made in accordance with either the negative resolution procedure, affirmative resolution procedure of the super affirmative resolution procedure (section 10(c)).
  • the Minister can nominate which of the above procedures is used (section 13), though either of the Houses of Parliament can insist on the affirmative or super-affirmative procedure if they pass a resolution to that effect within 21 days of the order being laid before Parliament. How likely is it the government will table such a resolution themselves? How likely is it the government will try to use parliamentary procedure to prevent such a resolution being tabled?
  • the negative resolution procedure requires a resolution being passed in either House of Parliament to stop the order being made (section 14) and such a resolution must be passed within 40 days of the draft order being placed before Parliament.
  • the affirmative resolution procedure requires a resolution being passed by both Houses of Parliament to approve the order (section 15), within 40 days of the draft order being placed before parliament.
  • the super-affirmative resolution procedure requires a resolution being passed approving the order in both Houses within 60 days of the draft order being put before Parliament. (section 16) The Minister can listen to representations, recommendations of House Committees and any resolutions passed regarding the draft order and put forward a modified draft of the order, which then needs approval by both House of Parliament. Alternatively the unmodified order can be made on the basis of the approval of the original draft.
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