In response to what it described as “hysterical” and “wild” opposition, the government has amended its Legislative and Regulatory Reform Bill. This is the Bill which, for most of its short life, was being presented as a Bill to deregulate businesses. About two months ago, it was revealed to be a Bill which would potentially allow a minister to make up any law, no matter how draconian, and make it law, without going through Parliament first.
Confronted by objections to this idea, the government initially said it would “consider amendments” to the Bill. Last month, it announced that it would be amending the Bill. Ten days ago, the amendments were published. On Tuesday 16th, the amended Bill has its final reading in the Commons.
The Legislative and Regulatory Reform Bill was described by a parliamentary committee as one of the most constitutionally significant Bills of our times, and MP’s have been given ten days to study the Bill’s amendments, and to vote on them. The amendments will, according to the government, “prevent people from misconstruing the reform as a bid by government to take a wider constitutional power”.
What the government now refer to as “the reform” is the Bill which commercial lawyers Clifford Chance warned would “allow ministers to create legislation with very little scrutiny…legislation which cannot then be amended by Parliament”. It is the Bill which inexplicably gives this power not just to ministers but, in Clause Four, to any person. It is a Bill with many legal quirks, including the ability to modify any existing legislation. It is the sort of Bill which, in the hands of a future government, could lead us to disaster. It is not, whatever your opinion of this government’s motives, a Bill to be trifled with.
So, you note with relief that the amendments seem to have silenced the opposition to the Bill. And yet, just before the Bill’s sudden final reading, you search in vain for informed commentaries on the amendments, as opposed to commentaries on what the government says about the amendments.
The government, to widespread belief, has pledged to “focus the Bill more on reform than on legislation”. Perhaps for this reason, whenever a minister now refers to the Bill, they drop the word “Legislative” from the title. But among all the promises, from the Cabinet Office comes the silent admission that clause four, the controversial clause which gives ministerial powers to any person, has not been addressed. “Oh, I think it has been, surely” said one Labour MP, doubtfully.
According to a lawyer at Clifford Chance, however, this power remains unchanged. Moreover, according there is still nothing, on the face of it, to prevent the Bill’s powers being used to suspend Habeus Corpus, or abolish jury service, or change any other aspect of our legal system. Campaigners have greeted as a victory the amendment which states that the Bill will not, after all, be allowed to be used to modify the Human Rights act. In the next sentence, the amendments also protect part one of the Bill, the part which grants these otherwise sweeping legislative powers. Left unmentioned, despite requests to the contrary, are the UK’s legal and democratic systems.
“Let me be quite clear” announced Jim Murphy, the minister responsible for taking the Bill through Parliament, in a letter to the parliamentary scrutiny committee last month. The committee had also protested about lack of time to scrutinise the Bill. “Safeguards already in the Bill ensure that the ordermaking power cannot be used to remove necessary protections, rights or freedoms. And I have already made a commitment to give Parliament a statutory veto on the face of the Bill.”
In fact, safeguards in the original Bill did not prevent “protections, rights or freedoms” being removed. While Mr Murphy’s commitment to “give Parliament a statutory veto” changed, some two weeks later, into giving Select Committees a veto: committees which are appointed by the government, and can only throw out proposals if they meet certain criteria. “We would argue that, to be a proper safeguard, you either get rid of the criteria altogether” said the lawyer for Clifford Chance, “or extend them so that they include a catch-all “not appropriate” clause”.
The government have done neither. Nor have the amendments addressed the fact that the Bill still includes the choice to bypass proper parliamentary scrutiny in the process of altering, shaping or changing legislation. The recommendation at Clifford Chance is that all legislation arising from the Bill should go through the super-affirmative procedure, which allows 60 days for scrutiny. At a time where MP’s are so flooded with new legislation – the government has introduced over 17,000 new pieces of legislation since 2001 – that they frequently are unable to read, let alone comprehend, its finer points, time for legal scrutiny is important.
And yet, the government has already refused a request to allow pre-legislative scrutiny of the Bill, preferring to rely on the assurances given by ministers. “Again I must stress that this Bill is to deliver our better regulation agenda and nothing else” Jim Murphy concludes in his letter. And one hopes that our MP’s are not normal, overworked, working people, with families, and have instead had a chance to study the amendments in the last ten days, and to consult lawyers about them. Last month, the received wisdom at Westminster was that it would “take months” even to draft the amendments, let alone to put the amended Bill through its final reading.
And so one also hopes that the general response when the amendments were announced was right, and that the government has indeed been forced by the facts to give in. “Climbdown on Ministerial Powers” the BBC reported, as Jim Murphy announced that “a select committee of MPs will be able to veto ministers' decisions. And the Regulatory Reform Bill will not allow any powers to make constitutional changes”. “A major climbdown” confirms Oliver Heald, who was campaigning against the Bill for the Conservatives.
But, not only does legal opinion suggest otherwise, the idea of a climbdown in itself implies that the government were actually planning to seize legislative power. The government, perhaps naturally, have appeared dismissive of, even angrily injured by, this accusation. The suggestion instead has been that these powers have appeared in the Bill by accident. But: “we were misled” said one Labour MP, after the Bill’s real contents were revealed, and after Labour MP’s had voted it through the House of Commons, twice. MP’s had been assured that it was “a deregulatory bill, with no malign effects”. Just as they are now being assured that the amended Bill will deliver the government’s Better Regulation Agenda, and nothing more.