Baroness Amos’ office forwarded my letter onto the Cabinet Office.
They have written to me with this reply. It really does need a response. I have a few ideas, but any comments would be gratefully received.
Better Regulation Executive
6th Floor
22 Whitehall
London
SW1A 2WH
Telephone 020 7276 2155
Fax 020 7276 21388 March 2006
Dear Mr. ()
Thank you for your letter of 25 February 2006 to Lady Amos concerning, amongst other things, the Legislative and Regulatory Reform Bill. I have been asked to reply on her behalf.
The purpose of the Legislative and Regulatory Reform Bill is to replace the Regulatory Reform Act 2001, to make it quicker and easier to reform legislation, to support the Government’s aim of bringing about risk-based, proportionate and targeted regulation and to make provisions about legislation relating to the European Communities.
Within the Bill there are rigorous safeguards which prevent orders from being made without proper consideration. In particular, a Minister cannot make an order under Part 1 unless he considers that certain conditions are satisfied. Furthermore, a Minister is under a statutory duty to consult on any proposals made. Where a Minister considers it appropriate to proceed with a proposal following consultation, they must lay an explanatory document with the draft order before Parliament.
The Bill also contains a number of procedural safeguards. For example, while it is for the Minister to recommend which level of parliamentary scrutiny they consider to be appropriate for an order, the ultimate determination always rests with Parliament, which can require that more rigorous scrutiny take place. This could either be affirmative procedure, which requires that the relevant committee has forty days to scrutinise a proposal, after which a proposal must be approved by both Houses, or the super-affirmative procedure which requires that the relevant committee has sixty days to scrutinise a proposal after which the proposal must be approved by both Houses.
In addition to these safeguards, the Government has undertaken not to use the order-making powers in the Bill to effect highly controversial measures and the statutory consultation process would identify any proposals that fall into this category. Furthermore, the Government has undertaken not to force any order through in the face of opposition from a committee of either House.
I hope that this allays any concerns that you may have regarding the Bill.
Yours,
(Civil Servant)
Legislative and Regulatory Reform Bill Team
22 Whitehall
Kirkland House
London
SW1A 2Wh
020 7276 2155
This is a detailed reply, but it’s essentially what I expected. There are several points here which I could come back on, however I want to be sure I don’t miss anything, so before I consider a response, I’d be interested to hear any comments. (Please use the on site comment form – indicate if you don’t want your comment to appear on the site)
See also:
- My site
- Previous letters on my site
- Manic’s repost of Simon Carr’s article in the Independent, and the post about how laws get used to the full extent
- The 1933 Enabling Act and this bill is dubbed England’s (actually the UK’s) enabling act
- Tim Worstall writes on this bill
- Campaign Against the Legislative and Regulatory Reform Bill – and the First post on this site, and a handy leaflet
- SpyBlog on the lack of safeguards
- A Logical Voice
9 Comments
Are the Cabinet office reading the same text of the Bill as we are ?
Or are there some nuances of NuSpeak which we are missing ?
“a Minister is under a statutory duty to consult on any proposals made.”
Just because the first line of Clause 11 Consultation uses the word “must” , that is not the same as a “statutory duty” to consult anyone about the proposed Order. This is because the people or bodies which may or may not be consulted are entirely at the whim of the Minister – the Bill uses the phrases “as appear to him” and “appearing to him” to qualify and weaken the word “must”.
What is so difficult about following the Cabinet Office’s very own Code of Practice on Public Consultations, managed by the very same Better Regulation Executive quango, which should last a minimum of 12 weeks , taking submissions from all such “interested parties” but also from opponents to the proposed Order as well ?
What is wrong with publishing a list of meetings and correspondence
which the Minister and the relevant Civil Servants have held with lobbyists both for and against the proposed Order, so that it can be seen that a proper, fair and balanced view is being taken (the details of the the meetings themselves can and should remain confidential).
Where is the statutory requirement for a proper background briefing documents , a cost / benefit analysis, a privacy impact assessment, an environmental impact assessment, a racial impact assessment etc. i.e. a full Regulatory Impact Assessment of the estimated effect of the Order when it is repealing, amending or replacing Primary Legislation ?
Who cares whether a Minister considers this or that ? 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.
Granted , this process is often fiddled, as was the case with the “Entitlement Cards” consultation, but there should be no discretion for a Minister to cherry pick the persons, organisations, or the people the Ministers chooses to consider to be representative of such organisations.
If this act can be used to amend constitutional acts such as the Magna Carta or the Bill of Rights etc, then it fundamentally changes the way that we are governed. If this is the case then it, in itself becomes a constitutional act the therefore requires the consent of the public in the form of a referendum.
(Edit: I concur, but unfortunately that is unlikely – look at House of Lords reform – Murk)
“Within the Bill there are rigorous safeguards which prevent orders from being made without proper consideration.”
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 disgree 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 draughting of Orders and other legislation these days.
The “affirmative”, the “super affirmative” and the alleged Select Committee vetos, would all be on a “take it ot 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.
A recent example of just how little Parliamentary scrutiny
is involved with such rubber stamping of an Order was the recent “debate” on the extension of the highly controversial Prevention of Terrorism Act 2005 Control Orders powers, which led to late night sittings in Parliament , “ping pong” between the Lords and the Commons etc, only a year ago.
However, when the promised “sunset clause” review of the legislation was debated, just before a Parliamentary recess, there were, at one time only 14 Members of Parliament present in the Chamber, for a “take it or leave it” debate lasting only 90 minutes, and this highly controversial legislation was renewed “on the nod”, without a division !
This is not what the public expects from the words “rigourous safeguard”. If even such highly controversial and immensely powerful and dangerous legislation is treated in this way, what chance has less universally controversial legislation got of being “safeguarded” ?
“In addition to these safeguards, the Government has undertaken not to use the order-making powers in the Bill to effect highly controversial measures”
If they have got nothing to hide, then why are there no such safeguards written into the text of the Bill ?
Any verbal or written promises by Ministers or Civil Servants are meangless in a Court of Law, which can only work within the text of the legislation.
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 ?
There can be no argument that sometimes the Government might have to act speedily in an emergency, because there are, already on the Statute Book, the other Cabinet Office draughted “Henry VIII” powers under the controversial Civil Contingencies Act 2004 Part 2 Emergency Powers, whereby 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 Contingecies 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 ?
Hopefully you might find the preceding comments useful in composing your reply to the Cabinet Office.
Up until now House of Lords reform has only changed the way that the Lords are chosen which, technically speaking, does not affect the way we are governed, however this bill does because it allows MP’s to bypass due process which definately alters the way that we are governed.
(Edit: Fair Enough – Murk)
During the House of Lords reform blair wanted to get rid of the roll of Lord Chancellor and replace it with a secretary of state however could not do so because the post of Lord Chancellor pre dates parliament so they had to reverse everything that they had done.
If this bill does become law without a referendum then I can see no reason why it could not be challenged and defeated through the courts, it would have to be used in an appeal following a conviction under a law which had been ammended by it though, otherwise, if it was just directly challenged, the powers that be would just put the case on hold (Something that they cannot do if it is being used as a defence).
How does “a Minister cannot make an order under Part 1 unless he considers that certain conditions are satisfied” constitute a “rigorous safeguard”? And how does the promise “not to use the order-making powers in the Bill to effect highly controversial measures” protect us from future misuse of the Bill? These are questions that remain unanswered, I feel.
On another note, thanks for pointing out the error in my “England’s Enabling Act” post title, that was an accidental bit of lazy titling on my part!
(Edit: You also had alliteration on your side – Murk)
I often think that writing to MP’s is a waste of good ink, however I have just emailed mine to ask him why this bill is not subject to a referendum as it does change the way we are governed.
Can’t wait to read the answer as he is a genuine Licky Licky (gordon) Brown Nose, NU Labour cretin, but I will post it when I get it. (bet it’s not an answer though! although I suppose if I get the runarouud it proves that there is a case)
It might make them think about it if they accept that there will be challenges, but somehow, nu labour policy seems to be to pass laws in abundance and worry about the legality of them if they are actually challenged. According to internal sources, this policy makes the government look tough and the courts look weak (aparantly tough government is what they think that the public want. The fact that these days I even hear Tories talking about loss of liberty and personal freedoms seems to have bypassed them completely).
Anyway, here’s the email:
“Dear Greg,
I wonder if you can help me.
The Legislative and Regulatory Reform Bill has just been brought to my attention.
It seems that should this bill pass, that it will change the way that we are governed.
If this is the case; why is it that this bill can become law without a referendum?
If it is not the case: Why does it not change the way that we are governed considering that laws can be altered in committee? something which has not been part of our system of government in the past.
Regards,
Jake Long”
Does the bill adequately protect negative liberties (“freedom from XYZ”)?
“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 [40]”
Privacy is not a freedom I would normally exercise. For example somebody pointing a camera through my Window while I sit and watch TV does not require me to do anything other than sit and watch TV but something very disturbing will have happened.
There is this in section 7:
“Provision under section 2(1) may not—
(a) authorise any forcible entry, search or seizure; or”
Does that mean a search that doesn’t involve force (like the camera through the window thing) is something that can be ordered? What about things like data retention? CCTV, ANPR etc are they searches, or just searchable records?
Simon
I omitted to talk about very the next section of the bill:
“Subsection (1) does not prevent an order under section 1 from extending any
power [of "forcible entry, search or seizure"] for purposes similar to those to which the power applied before the order was made”
So while there is no power in the bill to authorise new searches, seizures etc, any existing power can be ammended arbitrarily. That is not a rigorous safeguard.
Simon
One Trackback
Letter From the Cabinet Office
Murky.org has received a response letter from the Cabinet Office. Standard blurb you’d expect really but Murky is looking for comments on a response.
Murky also has a good post on sending letters to Labour MPs likely to rebel. I’ll be posting a temp…