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Overview of Blair’s latest enabling bill

Posted by James Hammerton @ 7:52 pm on 5 March, 2006.
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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