IN The Law and the Constitution, Sir Ivor Jennings explained that parliamentary supremacy means that Parliament can make whatever laws it likes. So “if it enacts that smoking in the streets of Paris is an offence, then it is an offence” (perhaps no longer so absurd an example in the light of the Health Bill). Because of parliamentary supremacy, the legislature has power even to pass a law conferring the power to legislate on other people. The Legislative and Regulatory Reform Bill (LRRB) will, if enacted, do precisely that. It will confer astonishingly broad powers on ministers to make the law of the land.

Clause 2 allows a minister to “make provision amending, repealing or replacing any legislation” for one of two purposes: “reforming legislation” or implementing recommendations of the Law Commission.

Statutory provisions that authorise persons other than Parliament to make the law of the land are known as “Henry VIII clauses”, however unfair that description may be (as Lord Justice Laws suggested in 2002 in the “Metric Martyrs case”) to “his late Majesty, who reigned 100 years before the Civil War and longer yet before the establishment of parliamentary legislative supremacy”.

Henry VIII clauses have become increasingly common in the past 50 years.

As well as the European Communities Act 1972 (which confers powers on Ministers to secure compliance with binding EU law), and the Human Rights Act 1998 (powers to bring legislation into line with the European Convention on Human Rights after a court has found a conflict), there are many other more mundane examples of ministers being authorised to amend the law. Since parliamentary time is finite, there can be no complaint (other than from constitutional purists) if Parliament confers a power on ministers to change the law to remove obsolete provisions, make uncontroversial changes or implement a policy approved by Parliament.

The objection to the LRRB is the breadth of the power it would confer on ministers. It allows a minister to make an order amending any area of the law, however controversial: abolishing jury trial, making it an offence to insult someone else’s religion, permitting foxhunting every other weekend.

The Bill requires the minister, before making an order, to be satisfied that the policy objective could not be satisfactorily secured without passing a law, the effect of the measure is “proportionate”, the provision “strikes a fair balance”, it does not remove any “necessary protection” and it does not prevent persons from continuing to exercise any right or freedom that they “might reasonably expect to continue to exercise”. But would a minister ever not be so satisfied in relation to a policy proposal coming from his or her department?

Ministers would not be able to use the powers to increase taxation or to create criminal offences for which the punishment is more than two years’ imprisonment, but those are limited protections. As Rob Marris, the MP for Wolverhampton South West, pointed out during the second reading debate earlier this month, ministers could use the powers to increase the penalty for using a mobile phone while driving to 18 months’ jail. Before exercising the powers, ministers must consult widely, and any proposed order must be laid before Parliament for possible approval or disapproval. But a draft order would not receive the detailed consideration and debate that the normal parliamentary procedures guarantee before any Bill becomes an Act of Parliament.

The Government contends that the LRRB is designed to increase the efficiency of powers to remove unnecessary “burdens” previously conferred by the Deregulation and Contracting Out Act 1994 and the Regulatory Reform Act 2001. The Government has given an assurance that the new powers would not be used to introduce “highly controversial reforms”. But nothing in the Bill confines its use to measures having a deregulatory effect. And ministerial assurances not written into a statute have no legal effect.

The traditional way for a Government to change the law is for a minister to pilot a Bill through all its stages in both Houses, answering questions, responding to proposed amendments and persuading others of the merits of the case. This is, no doubt, inconvenient for busy ministers, convinced that their proposals will add immeasurably to the welfare of the nation, and irritated by what they regard as the obstinacy of their opponents. Until now, ministers have recognised that the parliamentary process is a necessary element of a democracy, and that it may even improve the quality of legislation. It speaks volumes for the ever-increasing arrogance of this Government that it has introduced the Legislative and Regulatory Reform Bill and does not even understand the opposition to it.

The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford.

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