Back when Tony Blair was Prime Minister Labour tried to get through Parliament sweeping powers to change the law without requiring full Parliamentary scrutiny. Then Liberal Democrat MP David Howarth was one of those who led the charge against this, writing in The Times:
The Government proposed an extraordinary Bill that will drastically reduce parliamentary discussion of future laws, a Bill some constitutional experts are already calling “the Abolition of Parliament Bill”.
A couple of journalists noticed, including Daniel Finkelstein of The Times, and a couple more pricked up their ears last week when I highlighted some biting academic criticism of the Bill on the letters page of this paper. But beyond those rarefied circles, that we are sleepwalking into a new and sinister world of ministerial power seems barely to have registered.
The boring title of the Legislative and Regulatory Reform Bill hides an astonishing proposal. It gives ministers power to alter any law passed by Parliament. The only limitations are that new crimes cannot be created if the penalty is greater than two years in prison and that it cannot increase taxation. But any other law can be changed, no matter how important. All ministers will have to do is propose an order, wait a few weeks and, voilà, the law is changed.
The combination of a coalition of bloggers and the work of David Howarth was primarily responsible for turning this from an obscure issue of complaint into a significant political headache for the government – and to see the proposals defeated.
But now we’ve got a mini re-run heading our way, courtesy of the Public Bodies Bill. What it proposes isn’t as bad as what Labour proposed back then, but the same principles still apply. It’s been heavily criticised by a Lords committee and the issue picked up by some bloggers so far, including Liberal Conspiracy:
The Public Bodies Bill – which abolishes as many quangos as possible – gives ministers astonishingly leeway to amend all legislation.
The House of Lords Delegated Powers and Regulatory Reform Committee could not be clearer in its latest report that this goes much too far, and would be an important weakening of Parliament.
The Committee considers that the powers contained in clauses 1 to 5 and 11 as they are currently drafted are not appropriate delegations of legislative power. They would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process … The Bill confers powers on Ministers to make very significant changes. All orders under the Bill may amend or repeal any Act of Parliament and are thus Henry VIII powers. Orders under the Bill may even amend or repeal Acts of Parliament which have not yet been passed by Parliament (clause 27(2)).
The idea of giving the government the power to repeal an Act which has not yet even been passed is deserving of a Yes Minister plot, and it’s no wonder that both LabourList and Dizzy Thinks have also highlighted what is wrong with the proposals.
They’re right; the legislation should not pass in this form.
The underlying motivations for the proposals are far from all bad – a desire to get a move on with getting rid of unnecessary regulation. But in the haste to try to do the right thing, corners can be cut, mistakes made – and there is always the temptation to slip in more through the back door. That is why the concerns about the Public Bodies Bill expressed by the House of Lords Delegated Powers and Regulatory Reform Committee are right.
The good news is that Liberal Democrat and other peers are not exactly lining up to give this legislation united unqualified backing in the Lords, and the government is also (to its credit) talking about making changes to the proposals. With the right public pressure the legislation can be made right.