In 2006 the last government attempted to introduce the Legislative and Regulatory Reform Bill. This Bill was designed to enable any individual Government minister to amend a law without the need to consult Parliament or engage in the democratic process whatsoever. The only exemption in the Bill was the ability to increase income tax. However, under the Bill a minister (for example the Home Secretary) could have suspended Habeus Corpus for all criminal acts, or we could have seen a suspension of the need for elections. Part 1, Section 2(3) gave the "provision [for] amending or abolishing any rule of law". There would have been no need for any debate, no discussion in Committee. The Bill would have turned the Executive into an effective all singing, all dancing equivalent of the USSR Politburo.
It was this Bill and the response I received from William Hague, Oliver Heald and Richard Benyon, the latter being the MP for Newbury, where I was living at that time, that instigated my resignation from the Conservative Party. In his response, dated 3rd April 2006, Richard Benyon wrote:
"Thank you for your letter of the 29th March and for sending me a copy of your letter to David Cameron, which I read with interest.
I can assure you that the Legislative and Regulatory Reform Bill will receive a robust opposition from my colleagues and I in Parliament. We recognise this as a devious means by which Ministers will seek to avoid the sovereignty of Parliament. It is another example of the contempt with which this Government holds Parliament and our national institutions."
In my four-page letter to Benyon, dated 18th March 2006, I wrote:
"The government assures us, the electorate, that it need have no fears, that nothing "controversial" will be done, but there is nothing in the Bill which states that nothing "uncontroversial" will be done. We, the electorate, are being requested to trust the government and its successors. No government should be trusted with such powers and I am reminded of the words of James Madison who, in the Federalist Papers, warned that when handing out political power, enlightened statesmen would not always be at the helm. One has to ask whether such people are at the helm now?"
Oliver Heald, during a speech in the House of Commons on 9th March 2006, said
"Clause 4 gives that fast-track power not just to a Minister, but to any person. I assumed that that proposed mechanism was designed to build on the suggestion in the Hampton review that regulators' regulation-making powers should be merged. However when I suggested that the Bill should say that, the Minister replied: "The Bill doesn't say that partly because our ambitions are wider than that."
To say that the opposition to this Bill by the Conservative Party was robust would lay me open to charges of lying.
Readers will understand my amazement when I find the present Conservative Party quietly doing that which they opposed in 2006. Presently going through Parliament is the Public Bodies (Reform) Bill, which like the Legislative and Regulatory Reform Bill, gives Ministers the power to make very significant changes. All orders under the Bill may amend or repeal any Act of Parliament. The Public Bodies (Reform) Bill can be accessed on this page from the Parliament website. The House of Lords has published a report, which can be accessed here, which in summary says that:
"the powers contained in clauses 1 to 5 and 11 of the Bill as they are currently drafted are not appropriate delegations of legislative power and would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process."
Needless to say the Coalition is presenting this Bill in an entirely different light thereby not meeting their stated aim of transparency. Minister for the Cabinet Office, Francis 'Smarmy' Maude does no better - whilst basically shooting himself in the foot - when he writes:
"We promised we would restore political accountability for the decisions that affect people’s lives and bring in a new age of transparency in Government...."
I fail to see how granting to "Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process" restores any semblance of political accountability nor brings a new age of transparency!
If ever anyone doubted that we live in a state of democratised dictatorship, this Bill will surely be yet another step to full dictatorship by the political class and through them, ultimately by the European Union.
For those agitating for withdrawal from the European Union and who are suggesting what may be called 'direct action', I would suggest that - to paraphrase Leonard Cohen:
"First We Take Westminster"
Update: IPJ on Politics, who reposted my post, has an update which I, in turn, will cross-post:
"However, I am not the first to have noticed and commented on this Bill, it seems that the Governments own legal advisors have warned against it.
In a letter from the charity Justice on 12th November 2010, Roger Smith wrote to Dominic Grieve (himself a QC).
The Constitution Committee of the House of Lords was scathing about this element of the bill:In that same letter he closes:
When assessing a proposal in a Bill that fresh Henry VIII powers be conferred, we have argued that the issues are ‘whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards’. In our view, the Public Bodies Bill fails both tests.
“The Public Bodies Bill, as drafted, does not even contain the safeguards in the Legislative and Regulatory Reform Bill which then opposition MPs fought so hard to obtain. The approach of the Public Bodies Bill is particularly astonishing given the weight put on the sovereignty of Parliament by ministers to be instanced in the forthcoming Sovereignty Bill.When I posted yesterday that Britain needed a real Leader, I certainly wasnt looking for a dictator with a ministerial junta behind him.
In these circumstances, and as legal adviser to the government, I would encourage you to obtain the understanding of the relevant ministers of the constitutional affront which the Public Bodies Bill sets out to perpetrate.
It would certainly seem difficult for a number of those who are now ministers in the Commons to support the bill in its current form given their creditable opposition to the Legislative and Regulatory Reform Bill. This raised exactly the same issue of governmental disdain for Parliamentary scrutiny.
The convention that amendment to primary legislation requires primary legislation surely remains, as you and a number of your senior colleagues indicated in opposition, a powerful democratic safeguard – however inconvenient it may be for the government of the day.”
You can read more about this bill and reaction to it on the following sites.
Henry VIII stalks the Public Bodies Bill
November 9 2010, by Adam Wagner, UK Human Rights Blog
A breathtaking Bill of which even Henry VIII would have been proud …!
5 November 2010, Law and Lawyers
Concern over use of ‘Henry Vlll’ powers to overturn acts of parliament
11 November 2010, by Joshua Rozenberg, Law Gazette
(Copy & Paste links)