Cabinet Office

Final letter to the Cabinet Office

I've finally sent this letter off today, with thanks to the commenters on my earlier post. This letter is in reply to this missive from the Cabinet Office

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.

What is the definition of what is, and what is not, a "highly controversial measure”? What about merely controversial measures?

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of Excepted Acts of a constitutional nature which would require a full Primary Legislative process for them to be repealed, amended or replaced?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. 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. 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.

I have sent a copy of this letter to Jim Murphy MP.

To Jim Murphy MP I have sent this:

Dear Mr. Murphy,

As the minister in charge of the "Legislative and Regulatory Reform Bill", I am sending you a copy of the letter I have recently sent to Mr. Sydney Nash.

I note that you recently stated that you had only had 50 letters on this subject. I would be interested to know what fraction of those 50 gave you wholehearted support, and what fraction expressed concern. I had not written to you directly on this issue, as you are not my MP, but I had written to my MP as well as to other people in positions of influence. Obviously you could not count such letters in your 50 as you were not aware of them. I suspect many other people are in a similar position.

There is much concern about the proposed legislation amongst people who are aware of it. It has sadly had little coverage in the press – though there have been occasional editorials. Online, several sites have appeared, such as http://www.saveparliament.org.uk/ and http://bill111.wordpress.com/ . I wonder if you have any comment upon the point made on these pages, as well as the pieces in the Press, such as Danny Kruger's opinion piece in the Telegraph on 27th March, the Observer leader on the 2nd April, or the Law in Action interview on Radio 4 on the 21st March 2006?

Here is the copy of the letter which I sent, I look forward to your response to both the letter, and the above points.

I've then inserted the letter.

Potential Reply to Cabinet Office

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.

The Cabinet Office writes on the Legislative and Regulatory Reform Bill

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.

Dieu et mon droit

Better Regulation Executive

6th Floor
22 Whitehall
London
SW1A 2WH
Telephone 020 7276 2155
Fax 020 7276 2138

8 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)

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