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Saturday, April 29, 2017
Date Posted:
3/23/2006


Christian lawyers highlight dangers of ‘The Legislative and Regulatory Reform Bill’


The Dictatorship Bill
British Church Newspaper

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.

The 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.

The 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.

The 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

Clauses 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’.

‘Any 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.

The power is subject to the condition that the minister only exercises it if he thinks that the following conditions are made out:

a) the policy objective intended to be secured by the order could not be satisfactorily achieved without legislation

b) the effect of the order is proportionate to the policy objective

c) the provision taken as a whole strikes a fair balance between the public interest and the interests of the person adversely affected by it

d) The provision does not remove any necessary protection

e) The provision does not prevent anyone exercising or continuing to exercise any right or freedom which they might reasonably be expected to exercise.

By 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

What 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:

"This (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.

The 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 years’  imprisonment;

* 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).

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.”

This 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.

Firstly, 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 MPs.

This 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.

The 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

The 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 matter.

Andrea Minichiello Williams

Lawyers Christian Fellowship Public Policy Officer

Readers should write to their MPs.

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