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Letters to the Editor

The Times February 23, 2006

Legislative reform Bill grants powers too great for government
Sir, Francis Bennion is right to draw attention in his letter to the failure — of successive governments — to bring forward legislation to implement sensible law reforms recommended by the Law Commission. What needs to be recognised, however, is that the “difficulty in obtaining a place in the legislative programme for its reform Bills” is largely due to to the preference of governments (especially the present one) to introduce “popular” measures, frequently under the mantra of “modernisation” but which do little to effect real change.

It is not only the Legislative and Regulatory Reform Bill (Comment, Feb 21; letters, Feb 16 and 20) that demonstrates an arrogance on the part of government to bypass or railroad Parliament. Tony Blair sought to justify, in Prime Minister’s Questions last week, restoring an offence of “glorifying terrorism” to the Terrorism Bill on the basis that “if we remove any reference to glorification from the Bill, people outside will infer that we have decided to dilute our law at the very moment when we should strengthen it” and that “by weakening our law on terrorism at this time from what was proposed, we would send the wrong signal to the whole of the outside world”.

Does this mean that if the Government proposes a new law, however ill-judged or authoritarian, it is the moral duty of Parliament to support it for fear of the “wrong signal” it would send to do otherwise? Thankfully, the proposed 90-day detention law was struck down, but there is a continuing need for our MPs to remember that the price of freedom is eternal vigilance.

DAVID J. LAMMING
Groton, Suffolk

Sir, The Government has assured us that the very wide powers to be given to ministers by the Legislative and Regulatory Reform Bill to legislate by means of statutory instrument will not be used for controversial matters.

It is worth remembering that when the European Communities Act was passed, the then Solicitor-General told Parliament on July 13, 1972, that the similar powers in section 2(2) of that Act would be used for “consequential amendments of a small, minor and insignificant kind”. However, those powers are used to make fundamental changes in our law, involving important policy choices, without recourse to an Act of Parliament. A recent example is the intended implementation by regulation of the EC directive on age discrimination. Despite that this directive leaves a wide discretion to member states, the exercise of which will affect society at large and millions of people personally, the directive is being implemented by regulation.

What the use of section 2(2) of the European Communities Act shows is that any government, faced with the difficulty of finding enough Parliamentary time to get its legislation through, will inevitably choose other quicker routes when they are available. As Lord Justice Jacob said in the recent case of Oakley v Animal, no one can seriously suggest that the scrutiny Parliament gives to statutory instruments is as profound as that given to an Act of Parliament.

Whatever the Government’s good intentions, therefore, it is difficult to have much confidence that the powers the Government now wants to take will not be used to make fundamental changes that should be properly debated in Parliament.

SIR JEREMY LEVER, QC
GEORGE PERETZ
London WC1

Even the BBC and the Guardian have at last picked up on the Reform bill story, which is gradually making its way into the MSM, under the somewhat conciliatory headline Reform bill could ’sweep away parliamentary debate’

Matthew Tempest and agencies? Suggest that Conservatives and senior legal experts fear the bill will give ministers sweeping powers to amend or even introduce new laws without sufficient scrutiny from MPs.

Tempest continues:

“The seemingly arcane legislative and regulatory reform bill - which is currently going through parliament - was billed by the government as aiding business by cutting red tape from existing legislation.”

Thus; putting the governments excuse for the bill, but ignoring the concerns of Lord
Holme, the chairman of the Constitution Committee in the House of Lords, about the nature of the powers contained in the Bill: As expressed in a letter to the Lord Chancellor and Secretary of State for Constitutional Affairs:

“… we are concerned by the potential of the Bill’s proposals, if enacted, markedly
to alter the respective and long-established roles of Ministers and Parliament in
the legislative process. This is because Part 1 of the Bill seeks to confer
unprecedentedly wide powers on Ministers to make Orders to amend, repeal and
replace any legislation (and to grant powers in respect of rules of the common
law in relation to Law Commission recommendations), with only a very restricted
role for Parliament in the process. The reforms thus have the potential to be so
far reaching that especial consideration will need to be given by the Committee to
the risk of inadvertent and ill considered constitutional change.”

The Regulatory Reform Committee published a report on the Bill on 6 February 2006.Considered that the Bill “has the potential to be the most constitutionally significant Bill that has been brought before Parliament for some years”

However Tempest does mention that “a group of Cambridge University lawyers, led by professor John Spencer QC, has warned that the bill could potentially allow ministers to rewrite virtually any act of parliament, permitting them, for example, to abolish jury trial, put people under house arrest, rewrite immigration law or sack judges.”

“But Jim Murphy, the parliamentary secretary at the Cabinet Office, which is responsible for the bill, insisted today there were a series of safeguards in place.”

These however appear to be little more than a promise not to use these powers in an uncontroversial way. This of course begs the question who will decide what is, and what is not controversial. Of course the other point is that the ministers who are making these promises will not be around in a few years time.

Rob Knight at the Liberal Review puts this into perspective in a piece posted last Sunday

“ID cards. Laws against insulting or offending religious viewpoints. Detention for 28 days without trial. Orders which can make legal acts into criminal offences. Abolition of various long-standing elements of the constitution, with no real replacements and no increase in democratic accountability.”

Terrible, isn’t it? And yet, all of these things pale into insignificance next to the Legislative and Regulatory Reform Bill.

“This bill gives ministers the power to introduce or amend legislation without parliamentary approval. Yes, that’s right. This includes the introduction of new criminal offences and modification of the definitions of existing criminal offences. We would be left electing 659 MPs so they can sit powerless whilst the government passes whatever laws it likes. Worse still, ministers are directly appointed by the Prime Minister and could well be Lords rather than MPs.

And, due to Labour’s botch-job of constitutional reform, the Lords are appointed. So we are faced with the prospect of a PM being able to appoint entirely unelected people to a position where they can pass new laws, without any possibility of democratic veto.

These are not the characteristics of a liberal democracy. These powers have more in common with autocratic and despotic systems of government. The idea that unelected officials can change the very laws of the land is anathema to liberalism, democracy and, if history is any guide, basic common sense.”

Knight then make the point I have made several times, which boils down to; this lot may be fine upstanding people, but they are preparing the ground for a later generation of people who may well have other ideas.

“So what am I trying to say here? That the Tory “demon eyes” poster was right, and that Blair is a modern-day Hitler? No, I am not. It’s hard enough arguing for civil liberties without personal comparisons to Hitler being brought into play. But, as a case study in the decline of a broadly liberal democracy, the period immediately before Hitler’s rise to power can be instructive.

The real parallel is not with Hitler, but with his predecessor, German President Paul von Hindenburg (under Hitler, the roles of President and Chancellor were combined into the role of Führer). Von Hindenburg was President from 1925 until his death in 1934. Under his presidency, various laws were enacted, strengthening the role of the President. Amongst these new powers was the power to create new emergency laws without the consent of the Reichstag (article 48), the power to dissolve the Reichstag (article 25), making the limitation on the former power useless, and power over the appointment of the Chancellor (article 53).”

It was not von Hindenburg who annexed Austria, invaded Poland or instituted the “Final Solution”. But without von Hindenburg’s massive extension of executive power, it is doubtful whether Hitler would have been able to assume absolute power in the manner in which he did. von Hindenburg was not an evil man, but the tools he created were of immense use to a man who was evil. By establishing the supremacy of the executive over the legislature, von Hindenburg laid the foundations for Hitler’s later appropriations of further powers.

I don’t believe that Blair appreciates this lesson from history. It is impossible to examine his recent record - just go back to the top of this post to remind yourself - without realising that, in the wrong hands, the powers he is creating could be extremely dangerous.”

I do not think Blair is actually too stupid or too lacking in history lessons not to understand exactly what he is doing, I belive he hopes that his manoeuvring over these bills will mask the real intention and that must be, to bring our legal system in line with the European countries norm, as adapted by the EU.

More and more parliamentary bills have within them this philosophy of a civil system, where the law is the law simply because the government says it is. Thus they have to remove our built in protections from the state. The ethics of a civil system can be seen when the government belive that it can do anything it wishes, we now see that the objective of some policy or other being thought more important than any defence we the citizen may have against the state.

The logic of the particular argument is quite sound; animals may be ill treated by some people in their own home, we have got to do something about that, so we will give local council officers the right of entry. The government argues that rocketing property prices mean people living in certain houses, where renovation and/or alteration has taken place, might have to pay more Council Tax therefore inspectors are to be given to power to actually enter people’s houses and conduct an assessment to see whether or not the property is eligible for a revaluation into a higher tax band bracket. And if we refuse to let them in we will be breaking the law and can be £500. If a policeman or a local council official thinks that an offence under the licensing act (2000) is about to be, is being, or has been committed they may enter and search, any premises, at any time, and they may use force to do so.

These things have one thing in common and that is each one overturns a couple of basic concepts of English Common Law. We are innocent until proven guilty, therefore being innocent we do not have to prove we are, by allowing access to the police or the local council, on fishing expeditions. Also the separation of powers; if a policeman has some suspicion of an illegal activity he should be able to convince a magistrate of his need to enter a property.

By continually allowing the reasonable argument for one case to override our basic rights in another area, the government could not more clearly demonstrate its antipathy towards the very concept of the rights of a free people to live without interference from the state, they are therefore putting the state before and above the people, no longer do they work for us, they now rule us.

This is not an argument for cruelty to animals, not paying council tax or breaking the licensing laws, each one of these cases could easily have been met whilst still holding to the concepts of English Common Law freedoms, the fact that Blair and Co. decided not to do so is indicative of their continual attack on the British Constitution.

The overturning of the British constitution is being undertaken piecemeal, not in one single law, but in several different new laws which create new offences and then create the means for government to monitor those offences and punish “wrongdoers” often without the recourse to the courts, or by reversing the burden of proof. So that the person who is punished must prove that they were innocent of the crime.
Now with The Legislative and Regulatory Reform Bill the political elites are eroding even further the principle of rule by consent.