Thursday, February 23, 2006

Legislative and Regulatory Reform Bill: tyranny by the back door

One of my law school professors was very passionate about the doctrine of separation of powers. Rarely did a lecture on Constitutional and Administrative law take place without his musing on this subject. Shortly stated, separation of powers is good for democracy, because it acts as a check against autocratic rule by any of the three arms of Government.

This is the way the thing is supposed to work: the legislature (ie Parliament) makes law, the judiciary interprets the law, and the Executive enforces it. In my mind’s eye, I still see my professor pacing about the podium as he quoted Locke: it is a recipe for corruption for "the same persons who have the powers of making laws to have also in their hands the power to execute them". He told us that separation of powers was not a clear-cut thing; there is a bit of overlap, but nothing dangerous. For example, the Lord Chancellor, who is the head of the judiciary, sat in the House of Lords.

In some cases, legislative power may be delegated to the Executive. For example, in the United Kingdom, an Act of Parliament may state that statutory instruments may be made by the Executive (eg the Treasury, or a relevant Secretary of State) to deal with particular issues. However, these statutory instruments are not meant to provide for significant changes in the law. That remains the work of Parliament. The most a statutory instrument can do is to flesh out details for a skeletal framework of law already provided for in an Act of Parliament. It should never be the means of changing a law, or introducing substantive law. That is what our Members of Parliament, who are elected by, and therefore accountable to, the public, are supposed to do. A situation where a statutory instrument can change the law, and therefore alter our rights and duties, is a dangerous one. It amounts, in effect, to the seizing of power from the Legislature by the Executive. In crude terms, it means that our rights can be determined (or removed) by an unelected, and therefore, unaccountable Government body or minister, without Parliament having the opportunity to debate the issue.

It is against this backdrop that we must view the Legislative and Regulatory Reform Bill. One of the aims of the Bill is to enable Government ministers to 'amend, repeal or replace legislation in any way that an Act might'. As a liberal, I fear that some of our rights could thus be curtailed by ministerial fiat. As a taxpayer and a tax professional, I worry whether this Bill might give power to the Treasury to impose new taxes. As a citizen, I am alarmed at this brazen assault on our constitution by a Government with no sense of history.

Rightlinks have launched a campaign to raise public awareness about this Bill. They have also prepared some questions which we can put to our MPs and other useful people. I reproduce below a few of the questions, but for a full list, please see their website.

1) What guarantees are there that the Bill could not be used to bring in the EU Constitution by the back door?

2) If the Bill is just a simplifying measure for deregulation, why does it contain no requirement for any orders to actually reduce the amounts of red tape and regulation?

3) Why does the Bill give the power to create new law, including new criminal offences, to the Law Commissions, which are unelected quangos appointed by Ministers?

4) If the Bill allows Ministers to 'amend, repeal or replace legislation in any way that an Act might', does this not give them an unlimited power to ignore a democratic Parliament and legislate by decree?

4) If the Bill is so sensible, why has Parliament used a different way of making laws for 700 years?

5) If the Bill gives Ministers powers to charge fees by decree, is that not a charter to bring in unlimited stealth taxes?

6) As the Bill permits an order to be made by a Minister under the Bill provided its effect is "proportionate" to his "policy objective", since when in our history as a democratic country has a Government Minister’s "policy objective" directly received the force of law?

7) What guarantees are there that the Bill could not be used to bring in ID Cards by the back door?

8) Why does the Bill give the Scottish Parliament and the Welsh Assembly a veto over Ministers’ power to change the law which it denies to English MPs?
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Anonymous andy said...

Solid post. In a place like Britain, where (correct me if I am wrong) separation of powers is critical but merely implied by law, this kind of move is very reckless.

Tradition, something your government seems hellbent on destroying, is what keeps your democracy going. Blair's presidency-envy needs tobe put in check.

Then again, in America, we are having similar issues with this wiretapping business. Our executive has assumed the right to interpret "resolutions" by congress as carte blanche to rewrite statutes relevant to this war on terror. At Justice Alito's confirmation hearing, his views over the actual scope of executive power slipped under the radar, while our senators argued over whether or not he was a nazi in college.

There is this sinister idea cropping up in the West that we should trust our government. And of all branches, it's the largest and least accountable (executive) that we are supposed to trust?

And yet they want to tell people like Obasanjo and Museveni not to fiddle with constitutions in their favour. While their message is correct, their credibility is suspect now.

6:54 PM  

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