Parliament Shouldn’t Call in the Receivers Yet
by Tristan Jones

If a House of Commons committee said Parliament was about to pass the most constitutionally significant piece of legislation in years, you might assume it was something with serious media profile. Identity cards, perhaps, or the latest round of anti-terrorism laws.

On the contrary, the Bill in question, which gives Ministers unprecedented powers to write legislation, has in fact received barely a whisper of press attention. The Legislative and Regulatory Reform Bill – dubbed the much snappier “Parliamentary Abolition Bill” by its enemies – has somehow sailed below the radar of the national news agenda.

Supposedly a streamlining exercise, the Bill has been sold as a way of letting ministers tidy up and remove unnecessary regulations. Britain is suffocating under too many laws, goes the government’s logic, and the reason is that Parliament is too busy passing new laws to pass the laws which would simplify matters. If only there was a way of passing even more laws, we would then have time to remove the unnecessary ones.

'You can almost hear Charles Clarke scratching his beard as he ponders whether his latest pet project ticks the right boxes.'

Or at least, that’s the logic. The reality is that the Bill would let Ministers pass new legislation without having to go through  normal parliamentary scrutiny. Instead of debating and amending proposed changes to the law, Parliament would be given just one quick take-it-or-leave it vote.  Parliament is sometimes written off as a talking shop, but debate is a precious way of highlighting the flaws in new legislation. Worse still, by denying MPs a chance to amend Bills, the government will be able to force through unpopular measures by attaching them to otherwise welcome reforms – think, for example, what would have happened if Parliament had been unable to amend the detention without trial proposals in last year’s anti-terrorism laws. In this way, power will tilt more firmly than ever in Downing Street’s direction.

The government has made much of the protections built into the Bill, and so it comes as something of a shock to discover how flimsy they actually are. The Minister must first satisfy himself that various lofty conditions are met. This trick is an old favourite with executive-minded drafters: give a Minister some power, then say it is for him to decide whether he has used it properly. You can almost hear Charles Clarke scratching his beard as he ponders whether his latest pet project ticks the right boxes.

'It is therefore conceivable that the most fundamental criminal offence of all, carrying the maximum possible penalty, could be altered by Ministerial dictat.'

The second supposed protection is that Ministers won’t be able to create criminal offences punishable with more than two years in prison. But two years is a long time, and we should take little comfort from this limitation. It also proves that the Bill is about far more than lifting the regulatory burden – after all, the need to create more criminal offences does not exactly top the list of regulatory business priorities.

Worse still, the two-year rule does not apply if the new offence is proposed by the Law Commission. Just a few weeks ago that body sparked controversy by suggesting that the rules on murder and manslaughter need overhauling. It is therefore conceivable that the most fundamental criminal offence of all, carrying the maximum possible penalty, could be altered by Ministerial dictat.

The government’s final promised protection is not even written in the Bill, but is a pledge that their Minister Jim Murphy has repeatedly made to Parliament: they will not use the new procedure to push through anything “highly controversial.” This is pure make-believe. From senior police officers to school prefects, it is an unavoidable law of human nature that those who have power will use it. In twenty years’ time no Minister will even remember Murphy’s bold promise, let alone feel bound to honour it.

So why the media silence? Why no screaming headlines, no radio phone-ins? In most other democratic countries this sort of change would need a constitutional referendum, but the British public have not even been granted a debate. Part of the problem is that there is no drama, no hook to hang the story on. Twenty-four hour news is driven by events, and events have pictures and goodies and baddies and winners and losers. The biggest constitutional change in years? That’s just not news.

But it is not just the media that is to blame. The very fact that this Bill is about to be approved is an indictment of our MPs’ self-esteem – and that’s before they administer this latest self-castration. If MPs are concerned that they are drowning under the legislative burden, they should look for a solution that strengthens parliamentary sovereignty instead of reaching blindly for the quickest fix.

So who can we trust to restrain executive excess, if not the media and not Parliament? The courts? Certainly, a touch of judicial activism could go a long way to smooth the Bill’s roughest edges. For example, a judge could decide that if a measure didn’t meet one of the criteria then the Minister cannot have been satisfied to the contrary. Or, he might take Jim Murphy at his word and decide that ‘controversial’ orders are ineffective.

The problem with pinning our hopes on judicial activism is that it might never happen. It would take a bold judge indeed to strike down a law rushed through Parliament in response to some new threat to national security. And given that we have no written constitution, if a real power struggle did ever take place between the courts and the executive, there can be no doubt but that the latter would win.

It is because of this lack of a written constitution that our political system relies on each of the branches of government to respect certain unwritten rules. Supporters of the British approach say that this culture of respect is a surer guarantor of democracy than a written document which can be torn up at will. But if Parliament unquestioningly hands more power to the executive, we may wonder whether that culture has started to drain away. As we watch it slowly draining, we may wish we had tied it down with something more than goodwill.

http://www.publications.Parliament.uk/pa/cm200506/
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