Urban75 Home About Offline BrixtonBuzz Contact

The Legislative and Regulatory Reform Act

EddyBlack

New Member
The Legislative and Regulatory Reform Act passed.
http://www.opsi.gov.uk/acts/acts2006a.htm

The original bill was controversial.

This act had a high turnout and was closely fought.
It is also highly significant. I have given some analysis of it below.

===========================================================

Part 1 of the Act is ‘Order Making Powers’. This is the interesting bit:

1. Power 1 - to remove or reduce burdens.

The original bill proposed the ‘power to reform legislation etc’. Where the minister could simply order legislation to be reformed.

The Act itself gives the power of ‘reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation’:

These burdens are defined as:
‘A financial cost, an administrative inconvenience, an obstacle to efficiency, productivity or profitability or a sanction, criminal or otherwise which affects the carrying on of any lawful activity.’
This all seems rather less of a power grab than originally proposed.

However, it still gives the minister the power to reform legislation, but is supposed to be for reducing ‘burdens’ on business.

Power 1, 8, also has this piece of vague nonsense, if anybody can decipher it for me I will appreciate it:
1.8. ‘An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision) as the minister making it considers appropriate.’

Summary, power 1 gives the minister to power to reform any Act of parliament.

-----------------------------------------------------

3. Pre-conditions

The minister may not use this power to reform legislation, unless he considers that these conditions are satisfied where relevant:

a.) The objective could not be achieved using non-legislative means.
b.) The effect of the ‘provision’ is proportionate to the objective.
c.) The ‘provision’ strikes a fair balance between the public interest, and the interests of anyone adversely affected.
d.) The ‘provision’ does not remove any necessary protection.
e.) The ‘provision’ does not prevent anyone from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise.
f.) The provision is not of constitutional significance.

These conditions sound protective, but it is upon the minister to decide for himself whether his actions satisfy the conditions.

This section three also gives the minister the power to ‘re-state’ legislation for the purpose of :

3.4. Making the law ‘more accessible or more easily understood’.
3.5. to restate an enactment means to replace it with alterations only of form or arrangement.

Summary, this section establishes that the minister must monitor himself to check he is using the power to change legislation correctly and complying with the ‘conditions’. He also has the power to ‘re-state’ legislation.

4. Subordinate legislation

This is fairly standard I believe and deals with the power ‘subordinate legislation’, also known as secondary legislation.
This is the power conferred on the Minister to alter the original Act, without having to seek a new ‘Act of Parliament every time a detail needs to be updated or added to. The Act can give the Government the power to do this at a later stage.’

So this is the part of the Act that deals with the Minister’s power to amend the ‘Legislative and Regulatory Act’, itself at a later date.
To do this, section 4 makes it clear that a ‘statutory instrument’ is required., where both houses of parliament must approve it.


6. Criminal Penalties

1.) An order under this Part may not make provision to create a new offence that is punishable, or increase the penalty for an existing offence so that it is punishable-
a.) On indictment, with imprisonment for a term exceeding two years; or
b.) On summary conviction, with – imprisonment for a term exceeding 51 weeks

Summary, this Act, supposedly for reducing burdens on business due to the cost of dealing with unclear legislation, in reality gives the Minister the power to create new criminal offences. Also new summary offences, that is, no jury trial, can be created with imprisonment up to 51 weeks.

7. Forcible Entry etc.

Again, we're well away from cutting costly red tape for businesses.

1.) Subsection one says that this Act cannot be used to authorize forced entry or to force somebody to give evidence.

2.) However, this ‘does not prevent an order under this part from extending any power for purposes similar to which the power applied before the order was made.’ So existing powers are increased.


This concludes the ‘Powers’ section.

========================================================

Part 2 – Procedure
Sections 12- 18

------------------------------------------------

In a nutshell:

1. An order to change legislation must be made by Statutory Instrument.
2. A consultation on the order is required.
3. Then a draft and an explanatory document of the order must be ‘laid before parliament.’

4. The explanatory document contains the Ministers recommendation as to which of these three procedures is to be used by the house:
The Negative resolution procedure - Either House can resolve to reject the order within 40 days.
The Affirmative resolution procedure – Each House resolves to support the procedure within 40 days.
The Super- Affirmative procedure – Each House must support within 60 days. The minister must regard any representations, resolutions or recommendations. He can revise the draft and try again after the 60 days.

--------------------------------------------------

In another nutshell:

A minister may not make an order to alter legislation unless he has:

a.) Consulted the appropriate parties he feels will be affected by his proposals, and made the appropriate changes to his proposals. (13)

Having satisfied himself that this is done, and that he still feels the order is needed, he must ‘lay before parliament’ (14):

b.)
‘a draft of the order together with an explanatory document.’
The explanatory document must explain:
Under which powers the order is made and give reasons for it,
Explain why the minister considers that the conditions in section 3. have been met,

c.) The explanatory document must recommend which procedure will be used, to secure the statutory instrument.. I.e. Negative.
This procedure will apply unless within 30 days the house resolves that one of the other procedures will apply.


--------------------------------------------------------------

This concludes my analysis of the Legislative and Regulatory Reform Act.

I believe the original bill was worse, but the Act is still nearly as bad. We have gone nearly as far, and I strongly feel this is a very important and historical piece of legislation, that gives a great deal of power and influence to the ‘inner party’, or ‘the cabinet.’

It appears the powers in this act can be used by a minister to order the changing of legislation. There are a few checks to this power which where added to the original bill, but in reality we have taken a significant step towards dictatorship.

I’ve not seen this Act properly analysed anywhere else. The website ‘saveparliament’, which I believe is poorly done, or is a red herring, fails to even look at the Act. It just complacently declares that the danger was blocked.

This is not true, this Act is a BIG advance for tyranny. Please decide for yourself.

Eddy.

Here is the original bill:
http://www.publications.parliament.uk/pa/cm200506/cmbills/111/06111.1-4.html

Here is the Act:
http://www.opsi.gov.uk/acts/acts2006/ukpga_20060051_en.pdf

Here is its journey from bill to Act:
http://www.epolitix.com/EN/Legislation/200505/f42695fc-efb8-4fd0-8357-a36eec4cc3ed.htm
 

detective-boy

Banned
Banned
EddyBlack said:
Power 1, 8, also has this piece of vague nonsense, if anybody can decipher it for me I will appreciate it:
1.8. ‘An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision) as the minister making it considers appropriate.’
Without seeing it in context (and I haven't time now), I would suggest that it probably means that if an order made under this section has indirect effects on other legislation, whether the original subject of the order or not, changes can be made to it too. For instance, if an order changes something in the Companies Act and, as a result, something in the Tax Reform Act no longer makes sense, the order may make that change as well. Consequentional, supplementary and incidental provisions are all ways of describing that basic effect operated in slightly different ways.

Transitional provisions are temporary measures to bridge a gap between one event and another - perhaps where an order is made which anticipates some new Act coming through in 12 months time, so the order provides a transitional change until that happens.

And in relation to the ministers checking on themselves, don't forget the basic jurisdiction of the courts to strike down legislation which is ultra vires (i.e. made in excess of the powers allowed) and decisions which are irrational. (Ministers also have to self-certify that new legislation is Human Rights compliant but, if someone thinks it isn't, they can take it to the Courts for challenge and we have seen (with various attempts to deal with terrorism) the courts will intervene.)
 

Fez909

toilet expert
I wondered when this was gonna come in. I was going to start a thread on it myself the other day, but forgot.

This will probably be used to extend the 28 day terrorism detention limit to 90 days won't it? Can't see anything in the Act which says it can't be used.
 

ELO

Banned
Banned
Could this be used to remove Sunday trading limits (a pet issue of mine)


(edited to add, obviously this act must be used propotionally and for the purpose intended-business deregulation)
 

TAE

http://tinyurl.com/U75TAE
R.I.P.
Fez909 said:
I wondered when this was gonna come in. I was going to start a thread on it myself the other day, but forgot.

This will probably be used to extend the 28 day terrorism detention limit to 90 days won't it? Can't see anything in the Act which says it can't be used.
The original bill would have enabled a minister to modify the act itself. I don't know if that is still the case.
 

Paulie Tandoori

shut it you egg!
Can't quite believe that such a dangerous piece of legislation has entered the law books with so little comment. Royal Assent to amend an Act, primary legislation amended cos someone like Bliar has convinced Queenie that we need to make these changes desperado :eek:
 

EddyBlack

New Member
Commons amendments vote on 7th November.

A debate on whether this Act can be used to alter the constitution. And on the power of ministers.

The discussion began on Lords amendment number 9. Namely the pre-condition that a minister’s order “is not of constitutional significance”:

----------------------------------

Lords amendment: No. 9.

Mr. Heath: One of our principal concerns about the Bill… that matters of constitutional significance should be excluded from the scope of the Bill. That proposition was rejected in Commons proceedings on the Bill, but it has been accepted in another place. We strongly support Lords amendment No. 9, which adds an extra condition that Ministers must take into account when determining whether a matter is suitable for the fast-track procedure. It states that a provision can be considered if it
“is not of constitutional significance.”
So much, so good, although that does raise some questions about what is, and what is not, of constitutional significance.
It is clear to us that what comprises a constitutional matter— is not a matter for the decision or opinion of a Minister. But because of the arrangement of the terms of the clause in which this is inserted, it is made to be subsequent to the decision of the Minister as to whether he “considers” it to be of constitutional significance.’

-------------------------

The Rt. Hon Gentleman makes a proposal for an additional amendment, a.) - for a definition of what is considered ‘constitutionally significant’. This is a further amendment of amendment 9.

-------------------------

Continues:

‘Our amendment would remove that subjective test, and replace it with an objective test. What is the practical significance of that? First, it would give reassurance to many people in this country that their constitution will not be tinkered with by means of a fast-track procedure, beyond the scope of this Chamber. Secondly, it means that the action of a Minister in deciding to use this mechanism would be justiciable. It could be argued that it is already, as it is open to judicial review. But… what is open to judicial review is the means by which the Minister reaches his decision; what is open to such review is whether that decision is a reasoned opinion of a reasonable man or woman. That is not what we are saying. What we are saying is: is it the right decision? That is an objective test, and one that the court can quite properly adjudicate on.

It is a perfectly sensible amendment. It provides for an objective test. He says—in good faith, I hope—that there are no circumstances in which a Minister would deviate from that objective test in any case. Therefore, in practical terms, it would make no difference to the operation of the Bill. However, it would provide the reassurance that future Ministers—I am not thinking of Ministers of this Government, or of this Administration in any way—who might be tempted to use the mechanism in an improper way, cannot do so. That is our precise intent in tabling this amendment, and I commend it to the House.’

Mr. McFadden: ‘I ask the House to agree with the Lords in their amendment No. 9 but to reject the Liberal Democrats’ amendment (a).
Amendment No. 9 creates instead a new precondition that prevents a Minister from making provision in an order that he considers constitutionally significant. The only exception is that orders may restate constitutionally significant provisions, but only where doing so would make the law more accessible or more easily understood.

… concerns persisted that the order-making powers could be used to bring about significant constitutional change. The Government were clear from the start that those concerns were misplaced, but we proposed amendment No. 9 to put the issue beyond possible doubt. We consider the new precondition to be the most effective mechanism in meeting any concerns about the Bill’s constitutional impact, while retaining the supremacy of Parliament as the law-making body in the UK.

The main effect of amendment (a), however, would be to alter the balance between the judgment of Ministers and Parliament on the one hand, and the power of the courts on the other. If it were accepted, in undertaking a judicial review of an order a court would not only examine whether a Minister acted reasonably in reaching his judgment; it would be able to decide whether the provision of the order was in fact of constitutional significance. In other words, a court could substitute the Minister’s and Parliament’s opinion with its own.

David Howarth: ‘He says that it would be a question of a court passing judgment on the Minister’s and Parliament’s view of the constitution, but that is not quite right; a court would pass judgment on the Minister’s view of the constitution, and if it found that the Minister had got it wrong, the matter would come back to Parliament. Does the Minister not accept that the amendment would therefore protect Parliament against Ministers? He should not mix Ministers and Parliament together in his comments.

Mr. McFadden: If amendment (a) were included in the Bill, on the other hand, judges could override both Ministers and Parliament about whether an order is of constitutional importance. As someone in the other place put it, that would
“elevate judicial accountability over political accountability.”—[ Official Report, House of Lords, 3 July 2006; Vol. 684, c. 21.]
We do not want to go down that road.
… these things are not codified and they are matters of judgment. We believe that the Bill and the safeguards in it provide the best way of proceeding by making it a matter of whether the Minister considers, in the first instance, that the issues are of constitutional significance.

There is no agreement about what would be in any written constitution should we wish to try to change the system that we have had for some time.
It is then for Parliament to scrutinise rigorously both the content of the order and the Minister’s decisions, along with the reasons that he has given for them. On the basis of its own judgment after considering that evidence, Parliament must decide whether it agrees or disagrees with the Minister’s opinion. If the relevant parliamentary Committees in either House of Parliament do not agree with the Minister that the order meets the preconditions in clause 4, including the constitutional precondition, they have a statutory power of veto. The Government have also given an undertaking that they will not force through orders in the face of opposition from Parliament.

David Howarth: However, as has been made clear during the debate, we are not entirely sure whether the Bill can affect the Scotland Act 1998, trial by jury, the structure of local government, electoral law, the dismissal of judges and a whole host of other aspects of the law that might be reasonably considered to be constitutional. The central question is whether the judgment of whether a proposed change represents a matter of constitutional significance should be a matter principally for Ministers, or the courts and then Parliament.
 

EddyBlack

New Member
If Ministers were to face judicial review on the basis of what is really, in law, a matter of constitutional significance, they would be more risk adverse. They would not want to waste everyone’s time by bringing forward a regulatory order that would not get through the courts.

If a court found that a regulation concerned a matter of constitutional significance, the matter would have to be brought back to the House and dealt with by way of a full Bill. The main point of contention throughout our debates on this Bill has been what can be pushed through by statutory instrument and what should be dealt with through primary legislation.
The idea that Ministers should have a privileged right to decide what is a matter of constitutional significance is a constitutional monstrosity. It might well be that Ministers are well placed to make judgments on policy—the Minister referred to matters of policy—such as whether an end could be better attained without legislation, as is set out in the Bill. However, the question of constitutional significance should not be for them to judge. Ministers are interested parties. Much of our constitution is about precisely the power of Ministers and their relationship with Parliament and the law.

Some 750 years ago, the jurist, Henry Bracton, said that the king is under no man, but under God and the law, for the law makes the king. The point is that Ministers’ powers result from the law, especially constitutional law, so they should not be given special privileges when determining what those powers are, otherwise the rule of law itself breaks down.


Rob Marris: I hesitate to cross swords with such an eminent legal lecturer, professor or whatever as the hon. Member for Cambridge (David Howarth) wasbut probably no longer is—I do not think he is moonlighting—but I shall charge in none the less, and no doubt he will intervene on me if I get it wrong.
What the argument boils down to is that if the Government’s wording is accepted, matters could still go to court. If amendment (a) were accepted tonight, matters could go to court, but with greater powers for the court. That seems a somewhat ironic proposition for the Liberal Democrats to put forward. I do not know whether the Conservatives are supporting them, but we shall find out shortly, no doubt.

When we opened the debate on the Bill tonight, some Opposition Members described it as a Bill which, when it started its passage, particularly on Second Reading, for which I was present, was an attempt to abolish Parliament. They seemed to be standing up for Parliament, as all hon. Members would wish to, but amendment (a) suggests that they do not wish to stand up for Parliament but for the judiciary.

Mr. Heath: Does not the hon. Gentleman understand that when the only protection that Parliament has from the Executive is the judiciary, we will take the judiciary every time?

Rob Marris: That would be the case were I to accept the term, “only protection”, but in this context I do not.

David Howarth: To approach the same point from a different angle, does the hon. Gentleman accept that the purpose of amendment (a) is to protect Parliament against erroneous ministerial determinations about what is of constitutional significance, and that the effect of such a judicial decision would be to bring the matter back here to us in this House?

Rob Marris: Again, I am afraid that I do not accept the hon. Gentleman’s proposition that his amendment would, even via the device of the courts, offer greater protection to Parliament than that which is in the Bill.


Mr. Redwood: I have some sympathy with both sides in this debate. It is absolutely right that items of constitutional significance should not go through the accelerated procedure envisaged in the Bill, and I see that the Government have recognised that to some extent and tried to find a solution. On the other hand, the Liberal Democrats have a perfectly good point in that it leaves a lot of discretion in the hands of Ministers…

Mr. Greg Knight: Does my right hon. Friend agree that under amendment (a) the only involvement of the courts would be to the extent of saying to the Minister, “You’ve used the wrong procedure; this is of significance and should therefore be referred back to Parliament”?

Mr. Redwood: That is right, and it may well bring me down on the side of supporting amendment (a). However, it remains the case that a very important decision that should properly be taken by Parliament would be taken by a court of law in certain extreme cases, which is a bit of a pity.

Eddy Black: Not quite, if the court found the minister’s order affected the constitution, it would be referred to parliament. Pay attention to what Mr. Knight asks you.

Mr. Redwood: Ultimately, I would probably prefer to have another check against the Executive, because it is imperative that the accelerated procedure should not be used on constitutional matters.

Mr. Andrew Turner:
I have listened with great care to the arguments that have been advanced. Amendment No. 9 is of course welcome, but we must examine whether it is adequate. On amendment (a), rhetoric has been used on both sides of the argument.
The Government and their supporters allege that this is a battle between Parliament and the judges, while the hon. Member for Somerton and Frome (Mr. Heath), ably supported by the hon. Member for Cambridge (David Howarth), allege that it is a battle between Parliament and the Executive.

I very much agree that where we can delay a decision that is wrongly taken by a Minister, it is appropriate to provide Parliament with that additional weapon. I propose to support the amendment.

Mr. McFadden: I will endeavour to be brief in summing up the debate on a couple of key issues. First, as the hon. Members for Somerton and Frome (Mr. Heath) and for Cambridge (David Howarth) said, the courts can be involved even without the amendment. I acknowledged that in my opening remarks, but the difference between us is about the grounds. That remains a difference that we cannot accommodate, so we cannot agree to the amendment tonight. One reason was touched on by my hon. Friend the Member for Wolverhampton, South-West (Rob Marris), who pointed out that the amendment’s proponents tended to ignore the protections already in the Bill—trial by jury, for example, which could not be abolished because of the necessary protections of rights and freedoms in the Bill.

I believe that in respect of the presentation of the amendment, we have seen a downplaying, if not an ignorance, of the protections in the Bill.

Lords amendment 9 agreed to.
Motion made, and Question put, That consequential amendment (a) be made— [Mr. Heath].
The House divided: Ayes 210, Noes 298.

=========================================================

In a nutshell:

It remains at the discretion of ministers to decide if their order will affect the constitution. Those who are concerned about this are dismissed as ignorant.

This debate I think provides an interesting backround to the battle with M.Ps such as David Howarth, and Ministers who oppose checks on their power.

This article about the original bill from the Rt. Hon. Mr. Howarth , shows the early concerns he had, continuing up to the last minute, to fight what is essentially a massive power grab by the executive.
http://www.timesonline.co.uk/article/0,,1072-2049791,00.html

I hope this has been informative about this act.

I will be having a look at some of the other debates and key moments in the formation of this Act. I’ll post the highlights.
 

cybertect

It's grim up north (London)
thanks for that

Mr. Heath: Does not the hon. Gentleman understand that when the only protection that Parliament has from the Executive is the judiciary, we will take the judiciary every time?
I laughed out loud when I read this. :D
 

EddyBlack

New Member
I enjoyed that one too.

Also:

Marris's answer to the following question - he won't even aknowledge what ammendment a) was to be used for. He just brushes it off and defends the ministers.

He's labour of course, hoping to get into the cabinet by pleasing his bosses.
 

EddyBlack

New Member
Just by way of update.

Here is some analysis I found of this Act by Law firm Shepherd Wedderburn:
http://www.shepwedd.co.uk/knowledge/article/679-1096/legislative-and-regulatory-reform-act-2006/current/

'Legislative and Regulatory Reform Act 2006

On 7 November 2006 the Legislative and Regulatory Reform Act 2006 was passed, following a prolonged period in which the Bill was hotly debated. The Act replaces the Regulatory Reform Act 2001 and is part of the UK Government's Better Regulation Action Plan 2005. The Act will come into force on 8 January 2007.

The initial Bill set out the powers of Ministers to reform legislation and to promote regulatory principles by Order. Ministers were granted powers to make orders to: remove or reduce any burden springing from legislation; to promote regulatory principles; and to ensure transparency and consistency of regulatory activities.

Reacting to this conferral of broad powers on Ministers, the media termed the Bill both the 'Bill to end all Bills' and 'the Abolition of Parliament Act'. There was concern that the powers contained in the Bill were so broad that they could be used, for example, to abolish trial by jury or to allow the Prime Minister to sack judges. The Law Society of England and Wales expressed its concern that this power to change primary legislation by secondary legislation was not subject to sufficiently stringent safeguards. Members of both the Commons and the Lords also expressed concern. However, a number of amendments were made to the Bill that finally allowed it to pass into law...

Despite the amendments made to limit Ministers' powers from those that raised such concern early on, the Act still allows the amendment of primary legislation by Ministerial Order. The restriction to this is that the proposed amendments must remove or reduce regulatory burdens. However, the assessment for whether a particular amendment does this is subject to a subjective test. That is, it is only required that the Minister himself or herself believes that the order would serve the purpose of removing a burden. The House of Lords, in the third reading of the Bill, noted the difficulty of reviewing Ministerial action given this subjective test, as opposed to an objective one. An objective test would allow courts to quash a provision on the basis that, on the balance of probabilities, the order would not allow such a purpose. Despite this, the subjective test survived and remains part of the Act.

The amendments made have enabled a controversial Bill to become an official Act of Parliament; it remains to be seen what effect the Act will have when it comes into force on 8 January next year. In any case, the passing of Act is a success for the Government, which is currently working to improve regulation in the United Kingdom.'

This article shows that the law experts agree that he Act is still grievous in that Primary Legislation will still be ammended by ministerial order. Just with rather flimsy requirements that he will act responsibly.

---------------------------------------------

'Part 3 of the Act will help reduce the bureaucracy surrounding the transposition of EU obligations into UK law.'

http://www.cabinetoffice.gov.uk/REGULATION/reform/bill/

Not looked at this part yet...
 
Top