We were going to comment initially on the
Draft Governance of Britain - Constitutional Renewal Bill (.pdf 98 pages)
regarding the welcome plan to repeal sections 132 to 138 of the Serious Organised Crime Act 2005, which has chilled free speech and freedom of assembly in the over large Designated Area around Parliament Square and Millbank and Whitehall etc. - see the Parliament Protest blog
This repeal appears prominently as Part 1 Clause 1 of the draft Bill, however, any joy at this proposed return to the status quo ante, is marred by Part 6 of the Bill,
It looks as if we will have to again go through all the fuss and lobbying that we saw over the wretched Legislative and Regulatory Reform Act 2006, the previous attempt by this Labour Government to neuter Parliament by Order of a Minister.
See the Save Parliament website as a reminder of the dangers to our Parliamentary democracy from the executive branch of Government, which seem to be looming, yet again.
Part 6 43 Power to make consequential provision
FINAL PROVISION(1) A Minister o the Crown, or two or more Ministers of the Crown acting jointly, may by order make such provision as the Minister or Ministers consider appropriate in consequence of this Act.
(2) An order under subsection (1) may --
(a) amend, repeal or revoke any provision made by or under an Act;
(b) include transitional or saving provision.
(3) An order under subsection (1) is to be made by statutory instrument.
(4) A statutory instrument containing an order under subsection (1) which amends or repeals a provision of an Act may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(5) A statutory instrument containing an order under subsection (1) which does not amend or repeal a provision of an Act is subject to annulment in pursuance of a resolution of either House of Parliament.
N.B our original posting missed out the word under from 2 (a) , which appears in the current online version of the .pdf file. We are trying to see if we can recover the previous version of the .pdf file from which we were working, and which struck us as so peculiar and noteworthy at the time.
"under" makes the wording of 2 (a) less awkward, but it does not limit Clause 43 to just this Constitutional Renewal Bill, it still applies to every Act of Parliament.
- Repealing any Sections of any Acts of Parliament i.e. Primary Legislation, will only require the "affirmative resolution procedure".
- Revoking any Sections of any Acts of Parliament i.e. Primary Legislation, will only require the "negative resolution procedure".
- Amending any Sections of any Acts of Parliament i.e. Primary Legislation, seems to require both the "affirmative resolution procedure" and the "negative resolution procedure".
What happened to the supposed "super-affirmative procedure" and the whole of the debate in Parliament and in the UK political blogosphere over the wretched and controversial Legislative and Regulatory Reform Act 2006 then ?
Save Parliament - Legislative and Regulatory Reform Bill (and other issues)
The abuse of the catch all, excessively broad wording "amend, repeal or revoke any provision made by or an Act" means that even the Constitutional Acts like Magna Carta, the Bill of Rights 1689, Habeas Corpus, the European Communities Act, the Human Rights Act, the Civil Contingencies Act etc. can all be repealed or amended without the need for a full debate, or for new Primary Legislation, simply by Order of a Minister.
Such an Order could be passed, after a "debate" of about 40 minutes with 15 or 20 minutes for the actual voting through the lobbies, by a quorum of MPs as small as 40 i.e. only 21 Government MPs needed to rubber stamp an Order by a single Secretary of State, if the Order is even debated on the floor of the House of Commons.
It could also be rubber stamped by an even smaller committee of MPs, without any members of the public or the media present.
Such Orders are on a "take it or leave it " basis, with no opportunity to amend them
There is nothing to prevent such an Order by a Minister amending the powers in this Constitutional Reform Bill itself, in a completely arbitrary manner.
There is no requirement, like in other countries of say, a two thirds majority rather than a simple one vote over 50 percent majority, to muck around with Constitutional Acts, something which is appalling for a draft Constitutional Renewal Bill.
As usual, the Explanatory Notes add hardly anything at all to the clarity of the wording of the main text in the clauses, simply repeating them word for word , mostly. There is nothing which states exactly why this particular Clause is actually needed:
Part 6 FINAL PROVISIONSClause 43: power to make consequential provision
203. Clause 43 contains a power to make changes to primary or secondary legislation in consequence of the Bill by order. Subsection (1) provides that the power can be exercised by a Minister of the Crown, or two or more Ministers acting jointly.
204. Subsection (2) provides that an order may amend, repeal or revoke provision in primary or secondary legislation and may include transitional, transitory or saving provisions.
An order under this clause must be made by statutory instrument (subsection (3)). If it amends primary legislation, an order will be subject to the affirmative resolution procedure (subsection (4)). Any other order will be subject to negative resolution procedure (subsection (5)).
Note the peculiar use of italics in this section of the Explanatory Notes.- was this a last minute rushed job ?
Ideally the whole of Part 6 of the Bill should be removed.
If not, then the supposed safeguards on the abuse of power by Ministers should be explicitly stated on the face of the Bill to be the same as, or stronger than those in the Legislative and Regulatory Reform Act 2006 which are laid out in much more detail, and which involve the intervention of a "committee of either House" to sanity check any such Orders.
- 16 Negative resolution procedure
- 17 Affirmative resolution procedure
- 18 Super-affirmative resolution procedure
Is the fact that this controversial Part 6 is buried away at the end of the Bill, which will have the mainstream media and politicians concentrating on the Ratification of Treaties and the replacement of the Attorney General by the Director of Public Prosecutions in many instances etc., a sneaky attempt to make sure that any debate on these proposed limitless Order making powers by Ministers, is curtailed by lack of Parliamentary time and by guillotine Programming Motions ?
Ideally, if Gordon Brown and Jack Straw are serious about "Constitutional renewal", they would be using this Section of this Bill to exempt the core Constitutional Acts of Parliament from being amended or repealed by the Civil Contingencies Act or the Legislative and Regulatory Reform Act, or by this proposed Constitutional Renewal Bill, something which was attempted by the Opposition, but crushed by the Government majority, when the Legislative and Regulatory Reform Act was passed.
However, with the current short, vague, catch all wording, Part 6 of this Bill appears to be an attempt to circumvent even the limited constitutional protections in the wretched Legislative and Regulatory Reform Act 2006.
According to Jack Straw, the bill only has five parts.
@ Ian - that is interesting - was the whole of Part 6 slipped in at the last minute ?
It seems that the Conservative Shadow Minister for Disabled People Mark Harper the Member of Parliament for the Forest of Dean, has
so hopefully this will not just slip through Parliament unnoticed.
It is good to know that some MPs, or their political advisors and researchers, do take notice of issues raised first in the UK political blog space.
Had another look and while its actually nothing like as bad as L&R - they can't get at things like habeas corpus this time around because the scope is limited to things consequential to this bill, it does mean that they can reinstate or introduce a variation on the SOCPA provisions using secondary legislation and make amendments to the functions of the Attorney General and heads of various prosecuting authorities, tinker with the management of the Civil Service and make alterations to the process by which judges are appointed more or less by order.
Save Parliament has picked up on this and we're looking into it. It may be time to grease up the gears of grassroots campaigning again!
No doubt it is a last-minute rush job - almost all legislation is! But I think you're getting this out of proportion.
This power isn't like the wide amending power in the Legs. and Regs. Bill of a couple of years ago. It's simply a power to make amendments ministers reasonably believe follow as a consequence of the provisions of the Constitutional Renewal Bill. It wouldn't allow repeal of the Human Rights Act, say, unless that really is a "knock-on effect" of the Bill. If knock-on amendments affect an Act, then the affirmative resolution procedure has to be followed; if they only affect secondary legislation, the negative resolution procedure will do. And if anyone thinks ministers have gone too far in their judgment as to what's "consequential", well, the making of the amendment can be judicially reviewed, and the amendments quashed if the courts agree they're ulra vires.
This is a fairly common type of clause in Bills: there are several examples in this session's Bills, including in the Health and Social Care Bill, the Pensions Bill, the Child Maintenance and other Payments Bill and the Climate Change Bill, among others.
I've blogged about this earlier today.
I do sincerely hope that some sort of last minute draughting error has been made, and that Clause 43 should really only apply to Secondary Legislation as a direct consequence of this Bill.
If that is the case then the Government should willingly amend it themselves.
The inelegant phrase "any provision made by or an Act;" seems to be non-standard - it does not appear exactly like that in any web search engine queries, which index the vast majority of UK legislation published online.
Why is there any pressing need whatsoever, to amend or repeal any further Primary Legislation, which is not already explicitly being repealed or amended in the other parts of the Bill e.g. SOCPA ss 132 - 138 ?
Given that the Bill is entitled "Constitutional Renewal", there is every danger that a current, or future, Minister might decide that, say, the Habeas Corpus Act needs to be "renewed" for the 21st Century, by claiming that Ministers or Civil Servants, rather than Judges should decide any application for Habeas Corpus for which the "national security" flag has been waved.
Such a fundamental change to our Constitution could be achieved through this Bill, without the full debate and proper scrutiny required for Primary Legislation, because various bits of it already mention "national security", civil servants and Judges.
Just because the Government has used in the past, or is currently trying to use, similar but not identical language in other Bills, that does not make it right.
The current online version of the .pdf file seems to have been updated to include the word under , which makes a bit more sense, but which would still give Minsters power over any Act of Parliament by Order.
You need to calm down. Part 6 is a fairly standard power to allow tidying up the statute book - to make consequential amendments necessary because the new Act is in force. If it wasn't there and something was later spotted, a whole new Act of Parliament would be required, which would be a waste of Parliament's time.
There are countless examples, but there's section 259 of the Civil Partnership Act:
Power to make further provision in connection with civil partnership
(1) A Minister of the Crown may by order make such further provision (including supplementary, incidental, consequential, transitory, transitional or saving provision) as he considers appropriate—
(a) for the general purposes, or any particular purpose, of this Act,
(b) in consequence of any provision made by or under this Act, or
(c) for giving full effect to this Act or any provision of it.
(2) The power conferred by subsection (1) is also exercisable—
(a) by the Scottish Ministers, in relation to a relevant Scottish provision;
(b) by a Northern Ireland department, in relation to a provision which deals with a transferred matter;
(c) by the National Assembly for Wales, in relation to a provision which is made otherwise than by virtue of subsection (3) and deals with matters with respect to which functions are exercisable by the Assembly.
(3) An order under subsection (1) may—
(a) amend or repeal any enactment contained in an Act passed on or before the last day of the Session in which this Act is passed, including an enactment conferring power to make subordinate legislation where the power is limited by reference to persons who are or have been parties to a marriage;
(b) amend, repeal or (as the case may be) revoke any provision contained in Northern Ireland legislation passed or made on or before the last day of the Session in which this Act is passed, including a provision conferring power to make subordinate legislation where the power is limited by reference to persons who are or have been parties to a marriage;
(c) amend, repeal or (as the case may be) revoke any Church legislation.
(4) An order under subsection (1) may—
(a) provide for any provision of this Act which comes into force before another such provision has come into force to have effect, until that other provision has come into force, with such modifications as are specified in the order;
(b) amend or revoke any subordinate legislation.
(5) The power to make an order under subsection (1) is not restricted by any other provision of this Act.
These are common, and a scrutinised by the Delegated Powers Committee in Parliament. The fact that it's the affirmative procedure (requiring a vote in Parliament) should provide even more comfort.
I really suggest you scale back the call to arms, because this is just silly.
Mark Harper MP's exchange with Harriet Harman, the Leader of the House,
from the temporary Today in the Chamber version of Hansard:House of Commons Hansard 27 Mar 2008 : Column 338
Hopefully this Joint Committee will do a proper job of detailed scrutiny., but even then, as we have seen so many times before, the Government can simply ignore their report.
[Comment UPDATED 28 March]
@ Recce - if it was limited to only Secondary Legislation, I might agree that that is a common practice, but this is the potential repeal or amendment of any other Primary Legislation Acts of Parliament, including the supposedly core Constitutional Acts, by Order of a Minister.
None of the "negative" or "affirmative" or even the Legislative and Regulatory Reform Act's "super affirmative" procedures are much better than a rubber stamp in practice, as they are all on a "take it or leave it" basis, without a chance for any amendments to the Order, which may contain several useful or necessary other sections.
Each of the renewals by Order of the extremely controversial when it was passed Prevention of Terrorism Act 2005, which introduced Control Orders, have been "debated" by only a couple of dozen MPs for less than an hour each time.
It is not true that a brand new Act of Parliament would be needed to correct any mistakes or oversights in this Bill, there are plenty of multi part portmanteau Bills presented each year which could contain the appropriate correction, but which would get a chance of being properly debated and scrutinised.
The Statute Law (Repeals) Bill currently in the Lords repeals or amends some 300 out of date Statutes, but that is Primary Legislation, which will get the full debate and scrutiny.
It's common, wtwu, to have a clause like this permitting consequential amendment of primary legislation. I give further examples on my blog. In this parliamentary session alone, the Child Maintenance and other Payments Bill, the Health and Social Care Bill, the Pensions Bill, the Education and Skills Bill and the Housing and Regeneration Bill all have clauses like this.
Looks like wtwu is right. Good spot, I'll forward it on to my MP and a few others.
wtwu is not right. A power to make consequential amendments is not at all unusual, nor is it improper. They are common in Bills and are subject to proper Parliamentary scrutiny. For example, see this from the Joint Committee on Statutory Instruments:
The Committee agrees with the view expressed in Craies on Legislation (8th Edition), Chapter 3.4.10 that "As a general rule it can be expected that anything at all significant, and certainly anything involving significant intrusion on the liberty of the subject, will not reliably be effected in reliance on a mere power to make incidental or supplemental provision". In the Committee's view, that principle applies equally to a general power to make transitional or consequential provision and
applies all the more where the power is to modify an Act.
http://www.publications.parliament.uk/pa/jt200708/jtselect/jtstatin/47/4704.htm
A court would strike down in a second an instrument which was not really “consequential” on what the Act does. For example, the Act repeals SOCPA ss 132 – 138. No order could be made restoring them or adding any other restriction on protesting outside Parliament because that could not conceivably be said to be consequential on the repeal of those sections.
Comparing this to the Legs and Regs Act is ludicrous. None of us benefit from the spread of mis-information, but on this occasion that is what you are doing.
Some of the comments above may have appeared out of sequence as they were trapped by the spam filters.
It may well be that provisions for consequential amendments are common - however in relation to constitutional renewal (a euphemism surely) this extends just a bit beyond some tweaks and a logo-change.
I'd suggest that this particular bit of the Bill keeps the "dangerous" tag until such time as someone has gone through the whole thing and confirmed that every single one of the possible consequentials is harmless, alone or in conjunction with others.
Ministerial assertions - not being worth the hot air they are printed on - are no substitute for proper wording.
To say that it is harmless on the grounds that similar things have been done is unwise, given the difference in context and potential.