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 643 Power to make consequential 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 PROVISIONS
Clause 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.