Constitutional Theory Goes Bang

[liadnan]

... but I'm too busy to write about anything myself about the Legislative and Regulatory Reform Bill. Suffice it to say that the more I read it the more it seems to be one massive Henry VIII clause, with the real risk, in my view, that post Jackson it may be deemed to be primary legislation, which takes it largely out of the oversight of judicial review. All hail dirigisme -but most states which run things that way have a differently constituted and more fractured political establishment. If you listen carefully you can hear Haselrig, Pym, Hampden, Holles, and Strode spinning in their graves.

1(1) A Minister of the Crown may by order make provision for either or both of the following purposes—
(a) reforming legislation;
(b) implementing recommendations of any one or more of the United Kingdom Law Commissions, with or without changes.

[...]

2 (1) An order under section 1 may for either purpose specified in subsection (1) of that section make provision amending, repealing or replacing any legislation.
(2) Provision under subsection (1) may amend, repeal or replace legislation in any way that an Act might, and in particular may amend, repeal or replace legislation so as to
(a) confer functions on any person (including functions of legislating or functions relating to the charging of fees);
(b) modify the functions conferred on any person by legislation;
(c) transfer, or provide for the transfer or delegation of, the functions conferred on any person by legislation
(3) An order under section 1 may for the purpose specified in subsection (1)(b) of that section also make—
(a) provision amending or abolishing any rule of law;
(b) provision codifying rules of law.

It's true, of course, that secondary legislation by ministerial order has a long history, and has its place in settling the administrative machinery required to make the law work. But, at least since 1689, it has been settled (in England and then in the various iterations of the UK: I know not about Scotland before) that the power to do so arises only under the residuary, and these days fairly limited prerogative powers of the Crown (which in this context means the powers exercised by HM on the Advice of her ministers, as opposed to the very small number of personal powers exercised after she has taken advice from those people she considers appropriate (use of capitals deliberate) which are really used only if everything has gone a bit wrong), or, more usually, under powers specifically given under an Act. Almost any Act of Parliament states something along the lines of "the minister responsible may make orders providing for regulations under this section", except Criminal Law acts, and even those do sometimes. Thus the minutiae of administrivia are taken away from the body of the Act. But such orders are restricted to use for the limited purpose laid down in the section, and to the general principles of primary law -natural justice, legitimate expectations, etc etc-, and their use can be judicially reviewed, these days having regard to the HRA. Even then, such regulations have a tendency to be authoritarian and prescriptive in nature, which is in part a product of their purpose but in part also a product of the limited amount of review they receive. And the whole point of the exercise is to avoid spending time having the measures argued about in the Commons: that, for good purpose or ill -I happily concede that trying to use the time of the various parts of the state efficiently is a perfectly good purpose-, is the entire reason for arranging matters this way.

Acts of Parliament can themselves now be Declared in breach of the ECHR under the HRA, but that is a different, and far more difficult, procedure (and as a matter of principle does not invalidate them, though the practical consequences are in essence to that effect). By contrast to the established kind of Regulation, this is a general power to legislate in the manner of an Act of Parliament, including amendment of existing Acts by freestanding Regulations, and amounts in substance to a huge expansion of the Crown prerogative. OK, so at least ministers today, unlike those of the 17th century, have a degree of democratic accountability. But part of the reason for doing things as we do now is to guard against elective dictatorship.

It isn't actually the first time this government have allowed ministers to amend primary legislation by regulation. It was first used in the HRA itself, and more worryingly, in the Civil Contingencies Act 2004. But even then it's limited to matters arising under those Acts. What it has a great deal in common with is the power of the European Commission to issue Directives - but then, I consider that one of the main problems with the current legislative machinery of the EU.

Owen Dixon wrote in "The Law and Constitution" (1935) 51 LQR 590, 596 that it "is of the essence of supremacy of the law that the courts shall disregard as unauthorised and void the acts of any organ of government, whether legislative or administrative, which exceed the limits of the power that organ derives from the law." That principle ceases to have much force when there are effectively no limits on the power in question.

Chicken Yoghurt and Nosemonkey (who has a few other posts on the subject) have made a start on the problems. In what I find an utterly bizarre move Clifford Chance, of all people, have a very good paper on the subject (.pdf)

Meanwhile Prem Sikka has a rather ill-informed and confused articles about trusts law, offshoring, and the constitutional position of the CDTs in the Guardian. No one appears to have pointed out to him the existence of the recent flood money-laundering legislation in the UK, copied verbatim in most off-shore jurisdictions including the one in which I sit. Or the draconian powers and activities of the FSA, and its offshore equivalents. Or the large pile of non-chargeable work involving review of relevant procedures sitting on my desk. Perhaps I'm deluded and it's not there... I shall take the afternoon off.

Comments

[chickenfeet2003.livejournal.com]

Am I reading more into this than is there. It appears to paraphrase as "A minister of the crown may by order legislate anything at all". What's to prevent Charlie F abolishing Parliament?

[liadnan]

Well, I think that itself is blocked by the one limit accepted to exist on Parliament's powers (if we do the usual thing of pretending the massive hole in Diceyan theory pointed out from time to time by the Scots -that it's English constitutional theory- doesn't exist). That limit is that Parliament cannot abolish itself or limit its own future powers except in a rather confused and poorly understood way concerning the EU: see Factortame. So the status of such orders as equivalent to Acts of Parliament won't mean they can do the one thing that Parliament can't do.

I don't think there's any provision preventing the extension of the Parliamentary term though, unless I've missed it. Even the Parliament Acts have that, though it's no longer considered particularly effective, since the provision in the Parliament Acts can be removed by legislation itself passed under the Parliament Acts... probably.

[carezza.livejournal.com]

ARGH. Whenever the words 'money laundering' or 'client verification' float around I want to go and bury myself; any sign of FSA/money laundering compliance and the trainee is automatically shafted. After a two hour talk this evening on on verification of clients in foreign jurisdictions that article really wound me up.

[liadnan]

Ahahahaha. Get used to it, I'm afraid, that's the way the tide has gone.

Hope all is going well.

[carezza.livejournal.com]

It's fine, so far. Although being in Financial Institutions means that my life is governed by the FSA handbook and COB rules, which is enough to send most trainees running for the hills but I am made of sterner stuff (I'll keep repeating it until it's true).

[liadnan]

Hmm.
Still, I seem to remember you implying you actually like all that stuff... Luck.

[the-ophiolater.livejournal.com]

I think that any order amending an Act would then necessarily have to have the force of a primary legislation, in so far as it amends the text of that Act, but the actual amending instrument is separate from the Act, and as such should be capable of the full measure of judicial review.

I also submit that an order introducing an amendment that explictly derogates from the HRA1998 would be void under the HRA as an action of a public authority contrary to the Act.

[liadnan]

Question is whether that amounts to "amend, repeal or replace legislation in any way that an Act might". An act can explicitly derogate from the HRA after all. I would, it's true, expect the courts to take a pretty restrictive interpretation, but I also think the model being followed is that of EC Directives, which bothers me.

[the-ophiolater.livejournal.com]

You don't think that the courts will draw a distinction between:
a) The decision to make an order (reviewable);
b) The order itself (reviewable);
c) The Act that has been amended, repealed, or replaced (not of itself reviewable)?

If that is so, then just because the Act, following amendment derogates, the instrument introducing that derogation would be void. I would be quite surprised if the House of Lords did not draw such a distinction, given their more muscular behaviour in recent years. Logically, I think that it would be possible to assimilate the order to the Act so altered, but then the courts would be holding that Parliament had altered its definition for those purposes to be a single minister of the Crown (I suspect that this is what you mean when you mention Jackson in this context).

I predict that such a decision would not stand once it reached the House of Lords, who would not like that consequence, but I find the attitudes of the High- and Appeal- Courts to be less predictable, and more often to be rather too sympathetic to executive power. Such decisions might stand for quite a while, although it is fervently to be hoped not.

[liadnan]

Am just about to rush off, but yes, it is largely because of the Jackson point, and I think you've correctly identified what I mean by that, that I can see this as a potential interpretation. Though not all the speeches in Jackson would support the view either, I think (without checking) it was Rodgers who was most worrying in this regard.

I can certainly conceive of the High Court, not making the distinction you outline.