BACKGROUND AND OVERVIEW
This short briefing is meant to draw attention to the
basic issues surrounding the Bill, writes Andrea Minichiello Williams, Lawyers
Christian Fellowship (LCF) Public Policy Officer. Further details will be
provided over the next few weeks.
motivation behind the The Legislative and Regulatory Reform Bill’ (LRRB) is
two-fold. Firstly, it is intended to enable the Government to have a ‘cleanup’
of pieces of legislation which are not working (by repealing them) or to make
minor adjustments to other Acts which have already been brought into force.
Secondly, it is meant to enable the Government to implement the recommendations
of the Law Commission.
raison d’etre of the Bill has been widely supported ‑ in recent
years the number of enactments passed (both primary and secondary) has been
prolific. Any measure which enables a ‘tidying up’ and a cutting of red tape,
is seen as a good thing. One example of the use the LRRB would be put to is
that the Government have said they will use the new powers to dramatically cut
the administrative burden on businesses by exempting specific groups from
legislation which it turns out is demanding certain businesses to fill out vast
amounts of paperwork unnecessarily.
concerns about the Bill have not revolved around the avowed reason for its
proposal, but for the way in which the statutory scheme seeks to achieve that
aim. The premise of the scheme is that it would take too much Parliamentary
time and would be too cumbersome to require the House of Commons and House of
Lords to vote through the necessary amendments and repeals needed to tidy up legislation.
Therefore the Government are seeking to create a power whereby a minister can
make the necessary alterations himself.
WHAT THE BILL ACTUALLY SAYS
1 and 2 taken together state that a Government minister may ‘amend, repeal or
replace’ ‘any legislation’ for the purposes of ‘reforming Legislation or
implementing recommendations of the Law Commission’.
legislation’ means just that ‑ the minister can repeal Acts of
Parliament, secondary legislation, byelaws etc. There is also provision for
abolishing rules of common law.
power is subject to the condition that the minister only exercises it if he
thinks that the following conditions are made out:
the policy objective intended to be secured by the order could not be
satisfactorily achieved without legislation
the effect of the order is proportionate to the policy objective
the provision taken as a whole strikes a fair balance between the public
interest and the interests of the person adversely affected by it
The provision does not remove any necessary protection
The provision does not prevent anyone exercising or continuing to exercise any
right or freedom which they might reasonably be expected to exercise.
virtue of section 6 the minister may use the power to increase or introduce a
criminal penalty for certain behaviour of up to two years imprisonment. It
appears that this limit only applies to legislative amendments made for the
purposes of reforming legislation ‑ for the purposes of implementing the
Law Commission recommendations there may be no limit to the criminal penalty
the minister can introduce.
CONCERNS ABOUT THE BILL
concerns the LCF about this Bill is the exceptionally broad powers which it
accords the executive branch of Government at the expense of Parliament. A
leading group of Cambridge legal academics wrote the following in a letter to The
Times last week:
(the LRRB has been presented as a simple measure “streamlining” the Regulatory
Reform Act 2001, by which, to help industry, the Government can reduce red
tape by amending the Acts of Parliament
that wove it. But it goes much further: if passed, the Government could rewrite
almost any Act and, in some cases, enact new laws that at present only
Parliament can make.
Bill subjects this drastic power to limits, but these are few and weak. If
enacted as it stands, we believe the Bill would make it possible for the
Government, by delegated legislation, to do (inter alia) the following:
create a new offence of incitement to religious hatred, punishable with two
curtail or abolish jury trial;
permit the Home Secretary to place citizens under house arrest;
allow the Prime Minister to sack judges;
rewrite the law on nationality and immigration;
“reform” Magna Carta (or what remains of it).
would, in short, create a major shift of power within the state, which in other
countries would require an amendment to the constitution; and one in which the
winner would be the executive, and the loser Parliament.”
is an illustration of the extent of the concern about the proposed Bill. For
the LCF, two specific reasons for anxiety about the Bill can be drawn out.
it is clear that in the future, the power could be used by a minister to create
or repeal laws which are specifically contrary to our interests, freedoms and
rights as Christians. The example given of introducing a new Religious Hatred
Bill ‘by the back door’ highlights this. In the Public Policy Unit we have
already heard mutterings that the Government have not entirely given up on
their desire to get their version of the Bill through. If LRRB powers were used
to do this, we would have no opportunity to demand the usual Parliamentary
scrutiny and it would be little use lobbying or representing our views to our
links to one of the most controversial issues surrounding the Bill ‑ what
level of input will Parliament have in agreeing to the minister’s order? Much
secondary legislation is placed before the House on a ‘take it or leave it’
basis ‑ Parliament is expected to ratify it and there is no room for
amendments to be made. The Bill puts forward three possible procedures for the
legislature’s consideration of the order: a negative resolution procedure, and
affirmative resolution procedure and a super‑affirmative procedure. There
is not space to go into the details of each of these here, but there are
certainly deep concerns about the adequacy of these procedures for potentially
dramatic pieces of legislation.
second reason for LCF being concerned about the Bill relates to the need to
uphold the balance of powers between the executive, legislature and judiciary;
the need to uphold Parliamentary scrutiny of executive action; and the need to
support the constitution against any powers which might, if they fell into the
wrong hands, be used for despotic behaviour. Christians have a commitment to
righteousness and justice and it is our view that a Bill with such potentially
broad and unchecked powers could easily lead to unrighteousness and injustice
without any proper democratic redness.
WHAT IS HAPPENING NEXT
First Reading of the Bill was on the 11th January and the Second Reading was on
the 9th February. Quite a degree of concern was expressed in the Second Reading
debate and a number of amendments are being debated and put forward over the
next few days as the Committee stage draws to a close. There is no date yet set
for the Third Reading but it is clear that time is of the essence on this
Andrea Minichiello Williams
Lawyers Christian Fellowship
Public Policy Officer
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