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" â€“ to my mind the safeguards lack the properties of both rigour and safety. For example, you say that a minister must consult â€“ 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of Excepted Acts of a constitutional nature which would require a full Primary Legislative process for them to be repealed, amended or replaced?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.