Is the CRB a new attempt to destroy parliament?
Jon Bright (London, OK): This was brought to my attention by SpyBlog this morning (plenty of others are also up in arms about it) - the Constitutional Renewal Bill, which was released on Tuesday this week, contains this piece of legalese which will be worrying for anyone who followed the progress of the 2006 Legislative and Regulatory Reform Bill:
Part 6
FINAL PROVISION 43 Power to make consequential provision(1) A Minister of the Crown, or two or more Ministers of the Crown acting jointly, may by order make such provision as the Minister or Ministers consider appropriate in consequence of this Act.(2) An order under subsection (1) may –
(a) amend, repeal or revoke any provision made by or an Act;(b) include transitional or saving provision.
(3) An order under subsection (1) is to be made by statutory instrument.
(4) A statutory instrument containing an order under subsection (1) which amends or repeals a provision of an Act may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(5) A statutory instrument containing an order under subsection (1) which does not amend or repeal a provision of an Act is subject to annulment in pursuance of a resolution of either House of Parliament.
I’ve just got off the phone with Andrew Blick - OurKingdom’s new Westminster and Whitehall Editor - who is better able to decipher this type of language. He gave me his impression of the passage, which is simply this: it’s unclear. The powers it suggests are potentially very wide ranging - allowing government ministers to amend, repeal or revoke provisions made not just by this act (which would still be undesirable) but by any act of parliament (or simply the acts themselves), with very little in the way of checks and balances. There’s nothing about it in the White Paper, and the explanatory notes fail to live up to their promise by explaining little.
But the bill still has to go through pre-legislative scrutiny - when, at the very least, the government will be called upon to clarify this passage if everyone does their job properly. They may respond to the effect that this wasn’t intended, and change the wording, or their lawyers may claim the passage doesn’t do what we think it does. Some argue that the introduction of pre-legislative scrutiny has allowed those drafting bills to do so in a hurry, knowing errors will be caught later. However, this may be an attempt to revive some of the provisions of the 2006 act by trying to slip a clause in unnoticed - and if it isn’t caught in scrutiny, it could transfer serious powers to ministers at the expense of parliament. Worth keeping an eye on.
Filed under: Parliament
Jon,
I don’t think it’s unfair to assume that the drafters of a Bill should be competent enough to only create powers that the proposers of the Bill desire…
Would be nice UKLib but that’s just not the way it works - and we know that because government frequently tries to repeal it’s own legislation (See, for example, Jack Straw’s attempt to roll back FOI on the basis of revealing constituents names). We all know how quickly these things are written and how much they can be rewritten.
I’m not saying for a minute, however, that this shouldn’t be watched carefully.
If the blogosphere unites in publicising this clause then there is every chance that it will be removed on scrutiny. It’s far too wide ranging and over powerful to be ignored.
[...] Our Kingdom - and if it isn’t caught in scrutiny, it could transfer serious powers to ministers at the expense of parliament. Worth keeping an eye on. [...]
Jon, I accept that there is poorly drafted legislation that sometimes makes it all the way to the statute book.
Perhaps I’m too cynical, but time and time again we see requests for powers such as these - I think this particular case fits the Government’s modus operandi, if that’s an appropriate term.
As for repealing or ignoring it’s own legislation, I don’t believe that it’s usual that the Government does it because they didn’t foresee any problems.
Rather, the Government does what they think is expedient - they aren’t genuinely interested in FOIA (for example) for its own sake, just in the political capital they acquire from introducing it. The same goes for the Human Rights Act, probably any legislation you care to mention. If inexpedient consequences occur, they can blame them on the judiciary, the Opposition, civil liberties groups and so on.
Along the same lines they will try to push for extreme powers but be happy to settle for less extreme ones - eg 90 day detention, effectively bargained down to 28 days.
I’d like to add that it would be odd if the Government didn’t act in this way - they are after all after votes, and these are often things that can get you votes.