Why the Legislative and Regulatory Reform Bill is worse than the Civil Contingencies Act

I've posted this article on Magna Carta Plus as well as here. It follows up on my earlier article on the government's new enabling bill.

In my earlier coverage of the Abolition of Parliament Legislative and Regulatory Reform(LRR) Bill, I think I have underestimated how much power it gives to government ministers. I now think this bill actually gives more power to government ministers, in practical terms, than the Civil Contingencies Act (CCA).

The CCA explicitly gives Ministers both the powers of legislating via an Act of Parliament and the powers of the Royal Prerogative. However those powers are supposed to be invoked only in an emergency, are time limited to 7 days, albeit renewable, and have various other constraints such as not modifying the CCA itself or the Human Rights Act. There are protections for the courts and criminal offences created under CCA regulations can carry only 3 months imprisonment.

The possibility that the LRR is worse than the CCA was pointed out to me when discussing the bill in this thread on the usenet group, uk.politics.misc. One poster makes the following points:

• The LRR is designed ostensibly to be used in the normal course of governing, where the Civil Contingencies Act (CCA) is supposed to be used only in emergencies.
• The LRR can amend any legislation, where the CCA cannot be used to alter the CCA itself or the Human Rights Act.
• The LRR can be used to delegate legislative power, without apparent limit, to anybody the specified in an appropriate order.
• The LRR can be used to alter or abolish any rule of law.

The key matter I hadn’t considered fully before is this. The orders under the LRR can be used to confer legislative power on Ministers, such that they would then be able to legislate without any reference to Parliament at all. Given the government’s ability to control Parliamentary procedure (e.g. to ensure the negative resolution procedure is used), it would be possible for such a transfer of power in the favour of Ministers to occur without any vote in Parliament occurring!

This transfer could be achieved by sneaking the measure into a suitably large and convoluted order that implements a policy strongly backed by the governing party, and hoping it will either not be noticed due to the lack of time for scrutinising the order (this lack of time being arranged by the government) or if it is noticed it will be allowed through because the governing party’s MPs and Peers do not wish to abandon a key policy.

Remember there is no possibility for making amendments that would allow MPs or Peers to selectively modify problematic areas of the parliamentary orders. At best a request to revise the order can be made to the government which the government can consider and reject, or for that matter implement in any way it pleases. The Ministers will be in control at every step unless MPs or Peers vote the order down in its entirety.

I thus fear that if this bill passes we will not only see increasing amounts of legislation passed via parliamentary order with little or no scrutiny, but we will see Ministers being given increasing powers to legislate directly without reference to Parliament. The bill really should be entitled the Abolition of Parliament bill. The Abolition of Parliamentary Scrutiny Bill moniker I’ve been using in some posts is thus too mild a description of the threat this bill makes to Parliament’s role.