This is a draft reply to this letter which I got from the Cabinet office.
Comments, please (it is quite a fast response, so careful reads would be appreciated)
I am writing to you in response to you letter of the 8th March regarding the "Legislative and Regulatory Reform Bill".
Your letter has done nothing at all to allay my concerns.
You mention "rigorous safeguards" – to my mind the safeguards lack the properties of both rigour and safety. For example, you say that a minister must consult – such consultation does not necessarily translate into action. Indeed, "consultation" can be ignored.
There does not seem to be any requirement for what constitutes a proper explanatory document built into the bill. Must it, for example, include a list of who was consulted? Must it relay the arguments both for and against the proposal?
You say that "in addition to these safeguards, the Government has undertaken not to use the order-making powers in the Bill to effect highly controversial measures". Such an undertaking is not meaningful unless it is written into the bill. This is something that has been refused. Similarly, there is no limit to the bills which could be affected. Everything from the Parliament act to the Magna Carta, from the Scotland act to the bill itself could be changed by order. If this act can be used to amend constitutional acts such as the Magna Carta then it fundamentally changes the way that we are governed. If this is the case then it, in itself becomes a constitutional act. This should therefore only be passed by referendum. It certainly should not be passed through parliament "under the radar".
What would be so wrong with having, as was proposed by the Opposition, a Schedule of Excepted Acts of a constitutional nature which would require a full Primary Legislative process for them to be repealed, amended or replaced?
By the controversial Civil Contingencies Act of 2004 (Part 2 Emergency Powers), emergency Regulations, by (oral) Order of a Minister, already have the full force of any Act of Parliament or exercise of the Royal Prerogative, and which can amend or repeal any Act of Parliament save for the Human Rights Act and the Civil Contingencies Act itself.
Why is there no such similar safeguard, written into the text of the Bill, which would prevent the Legislative and Regulatory Reform Act from being used to modify itself ?
You say that a Minister cannot make an order "unless he considers that certain conditions are satisfied". This is an absurdity; do we truly expect ministers to think that their plan is one that won’t be classed as controversial? It should be Parliament and the public who consider such matters in detail. It should be the duty of a Minister and the Civil Service to provide the relevant, fair, balanced and detailed background information upon which such policies and decisions can be made.
Neither the “affirmative” nor the “super affirmative” procedures nor the alleged vetos of some, but not all Select Committees (presumably at the whim of a Minister) are what the public would understand as being actual “safeguards”.
Select Committees are invariably under the control of the Government of the day and whilst they may disagree with portions of a proposed Government legislation, they usually approve it.
There is no scope for any amendments or improvements or even simple error corrections to the obscure doublespeak which creeps into the draughts of Orders and other legislation these days.
The “affirmative”, the “super affirmative” and the alleged Select Committee vetoes, would all be on a “take it or leave it” basis and will be prone to the same sort of political manipulation as with all “composite motions” and “portmanteau Bills” i.e. one or two contentious clauses will be slipped into a much larger package of generally acceptable and necessary measures, so people will end up voting for what they see as the lesser of two evils overall, but the contentious clause will have been smuggled into law.
The government must remember that no matter what the intent, unintended consequences can flow. Even if this bill is written with the best intentions, one cannot guarantee that some future government will not use it to the letter of the law, ignoring the guarantees made, but not written into the bill.
7 Comments
Nicely put…
Note to self: I need to change this bit
‘do we truly expect ministers to think that their plan is one that won’t be classed as controversial?’
WILL be classed.
Latest Version
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I am writing to you in response to you letter of the 8th March regarding the ‘Legislative and Regulatory Reform Bill’.
Your letter has done nothing at all to allay my concerns.
You mention ‘rigorous safeguards’ – to my mind the safeguards lack the properties of both rigour and safety. For example, you say that a minister must consult – such consultation does not necessarily translate into action. Indeed, ‘consultation’ can be ignored.
There does not seem to be any requirement for what constitutes a proper explanatory document built into the bill. Must it, for example, include a list of who was consulted? Must it relay the arguments both for and against the proposal?
You say that ‘in addition to these safeguards, the Government has undertaken not to use the order-making powers in the Bill to effect highly controversial measures’. Such an undertaking is not meaningful unless it is written into the bill. This is something that has been refused. Similarly, there is no limit to the bills which could be affected. Everything from the Parliament act to the Magna Carta, from the Scotland act to the bill itself could be changed by order. If this act can be used to amend constitutional acts such as the Magna Carta then it fundamentally changes the way that we are governed. If this is the case then it, in itself becomes a constitutional act. This should therefore only be passed by referendum. It certainly should not be passed through parliament ‘under the radar’.
What would be so wrong with having, as was proposed by the Opposition, a Schedule of Excepted Acts of a constitutional nature which would require a full Primary Legislative process for them to be repealed, amended or replaced?
By the controversial Civil Contingencies Act of 2004 (Part 2 Emergency Powers), emergency Regulations, by (oral) Order of a Minister, already have the full force of any Act of Parliament or exercise of the Royal Prerogative, and which can amend or repeal any Act of Parliament save for the Human Rights Act and the Civil Contingencies Act itself.
Why is there no such similar safeguard, written into the text of the Bill, which would prevent the Legislative and Regulatory Reform Act from being used to modify itself ?
You say that a Minister cannot make an order ‘unless he considers that certain conditions are satisfied’. This is an absurdity; do we truly expect ministers to think that their plan is one that will be classed as controversial? It should be Parliament and the public who consider such matters in detail. It should be the duty of a Minister and the Civil Service to provide the relevant, fair, balanced and detailed background information upon which such policies and decisions can be made.
Neither the “affirmative” nor the “super affirmative” procedures nor the alleged vetos of some, but not all Select Committees (presumably at the whim of a Minister) are what the public would understand as being actual “safeguards”.
Select Committees are invariably under the control of the Government of the day and whilst they may disagree with portions of a proposed Government legislation, they usually approve it.
There is no scope for any amendments or improvements or even simple error corrections to the obscure doublespeak which creeps into the draughts of Orders and other legislation these days.
The “affirmative”, the “super affirmative” and the alleged Select Committee vetoes, would all be on a “take it or leave it” basis and will be prone to the same sort of political manipulation as with all “composite motions” and “portmanteau Bills” i.e. one or two contentious clauses will be slipped into a much larger package of generally acceptable and necessary measures, so people will end up voting for what they see as the lesser of two evils overall, but the contentious clause will have been smuggled into law.
As another example, Section 7.1 prohibits the authorization of forcible entry search and seizure, or compelling the giving of evidence except to the extent that it implements recommendations of any one or more of the United Kingdom Law Commissions. Nor does it prevent orders made under section 1 from extending any power for purposes similar to those which the power applied before the order, this allows for gradual changes – resulting in an eventual large change without primary legislation.
The government must remember that no matter what the intent, unintended consequences can flow. Even if this bill is written with the best intentions, one cannot guarantee that some future government will not use it to the letter of the law, ignoring the guarantees made, but not written into the bill.
As an experiment in blog collaboration, here is a version with some suggested minor amendments:
I am writing to you in response to you letter of the 8th March regarding the ‘Legislative and Regulatory Reform Bill’.
Your letter has done nothing at all to allay my concerns.
You mention ‘rigorous safeguards’ – to my mind the safeguards lack the properties of both rigour and safety. For example, you say that a Minister must consult – such consultation does not necessarily translate into action. Indeed, ‘consultation’ can be ignored.
There does not seem to be any requirement for what constitutes a proper explanatory document built into the Bill. Must it, for example, include a list of who was consulted? Must it relay the arguments both for and against the proposal?
You say that ‘in addition to these safeguards, the Government has undertaken not to use the order-making powers in the Bill to effect highly controversial measures’. Such an undertaking is not meaningful unless it is written into the Bill. This is something that has been refused.
Where is the definition of what is, and what is not, a “highly controversial measure” ?
Similarly, there is no limit to the Acts of Parliament which could be affected. Everything from the Parliament Act to the Magna Carta, from the Scotland Act to the Legislative and Regulatory Reform Act itself, could be changed by Order. If this Act can be used to amend constitutional Acts such as the Magna Carta then it fundamentally changes the way that we are governed. If this is the case then it, in itself becomes a constitutional Act. This should therefore only be passed by referendum. It certainly should not be passed through Parliament ‘under the radar’.
What would be so wrong with having, as was proposed by the Opposition, a Schedule of Excepted Acts of a constitutional nature which would require a full Primary Legislative process for them to be repealed, amended or replaced ?
By virtue of the existing Civil Contingencies Act of 2004 (Part 2 Emergency Powers), Emergency Regulations, by (oral) Order of a Minister, already have the full force of any Act of Parliament or exercise of the Royal Prerogative, and can amend or repeal any Act of Parliament save for the Human Rights Act and the Civil Contingencies Act itself.
Why is there no such similar safeguard, written into the text of the Bill, which would prevent the Legislative and Regulatory Reform Act from being used to modify itself ?
You say that a Minister cannot make an Order ‘unless he considers that certain conditions are satisfied’. This is an absurdity; do we truly expect Ministers to think that their plan is one that will be classed as controversial? It should be Parliament and the public who consider such matters in detail. It should be the duty of a Minister and the Civil Service to provide the relevant, fair, balanced and detailed background information upon which such policies and decisions can be made.
Neither the “affirmative” nor the “super affirmative” procedures nor the alleged vetos of some, but not all Select Committees (presumably at the whim of a Minister) are what the public would understand as being actual “safeguards”.
Select Committees are invariably under the control of the Government of the day and whilst they may disagree with portions of a proposed Government legislation, they usually approve it.
There is no scope for any amendments or improvements or even simple error corrections to the obscure doublespeak which creeps into the draughts of Orders and other legislation these days. What mechanism is there for any amendments or improvements or even simple error corrections to the to the highly complicated and obscure wording of modern legislation or regulations ?
The “affirmative”, the “super affirmative” and the alleged Select Committee vetoes, would all be on a “take it or leave it” basis and will be prone to the same sort of political manipulation as with all “composite motions” and “portmanteau Bills” i.e. one or two contentious clauses will be slipped into a much larger package of generally acceptable and necessary measures, so people will end up voting for what they see as the lesser of two evils overall, but the contentious clause will have been smuggled into law.
As another example, Section 7.1 prohibits the authorization of forcible entry search and seizure, or compelling the giving of evidence except to the extent that it implements recommendations of any one or more of the United Kingdom Law Commissions. However it does not prevent Orders made under Section 1 from extending any power for purposes similar to those which the power applied before the Order. This allows for gradual changes – resulting in an eventual large change without Primary Legislation.
The Government must remember that no matter what the intent, unintended consequences can flow. Even if this Bill is written with the best intentions, one cannot guarantee that some future Government will not use it to the letter of the law, ignoring the guarantees made, but not written into the Bill.
Could this perhaps turn into an open letter to the Cabinet Office from all of the concerned elements in the UK blogging scene? As well as sending it to them, we could try to get it published in a major newspaper. It might need a bit of adaptation to give a little more background for the newspaper readers, but it might be worth a try.
(Edit: Possible… I think I’d like any ‘open’ letter to be drafted especially for purpose. I think it’d also be best if it were hosted on one of the dedicated sites for this bill, e.g. saveparliament.org.uk… the signatures could contain links back to relevant posts – Murk)
I agree that an open letter should be written specially, yours just seemed like a good place to start
I’ll put together an email tonight and see if I can get a few of us together to contribute to one.
Having recieved a reply to my previous letter sent to my illustrious MP Greg Pope which is hardly worth posting, I sent him this:
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Dear Greg,
Whether it is the intention of the legislation or not, the Legislative and Regulatory Reform Bill does give MP’s the power to amend laws without due process which must change the way that we are governed and therefore according to Lord Justice Laws it must be “constitutional law”
Constitutional law is by definition a contract between the citizen and the state. As with any contract, If either side wishes to change that contract then both parties must be in agreement, therefore anything that does change that contract should be subject to a referendum or civil war, as has been the case in the past.
The Bill of Rights 1689 states: That for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
P.S. Please don’t tell me that the Bill of Rights is only of persuasive argument. It IS law and therefore like any law must be abided by. The Declaration of Rights which is what enabled parliament is a duplicate of the Bill of Rights, so if you state that the Declaration of Rights is only of persuasive argument then so is parliament and all it’s legislation. Politicians cannot hide behind the Bill of Rights quoting “Parliamentary Privilege” and yet turn around to the people who put them in power and say “It is only of persuasive argument”
Regards,
Jake Long
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And got this disgraceful reply back:
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Dear Jake
Well, it’s a view, I suppose. One of the great benefits of our democracy is that you are entitled to hold these frankly eccentric views. As I say, this is a straightforward measure which Parliament will deal with in the usual way, declining your kind offer of either a referendum or civil war.
Best wishes
Greg
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This just confirms my belief that writing to MP’s is a waste of good ink, or perhaps it is just because I find it impossible to crawl to thier ego’s. Either way, I shall not be writing to him again.
Myself and others have been having discussions about constitutional law and come up with the following:
Constitutional law is a contract between citizen and state. (similar to contract and tort law)
Any contract needs the agreement of both parties (in this case citizen and state)
Failure to get the agreement of both parties nulifies the contract.
This is where I am heading with a court case if the worse comes to the worse and am looking for people to play devils advocate in order to build a stronger case and would appreciate any input.
The other part of the case, which would be proving that it is in fact constitutional law should be fairly easy – I think.