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Legislative and Regulatory Reform Bill

The Bill has been like a time bomb ticking away in both Chambers of Parliament. Slowly, mainly in the other place, various wires that connect the timer to the explosive device have been snipped away. We are facing the last small wire, which, if cut, would finally make the entire Bill safe. It is a much better Bill than it was. It can no longer apply to itself or to the Human Rights Act 1998. However, as has been made clear during the debate, we are not entirely sure whether the Bill can affect the Scotland Act 1998, trial by jury, the structure of local government, electoral law, the dismissal of judges and a whole host of other aspects of the law that might be reasonably considered to be constitutional. The central question is whether the judgment of whether a proposed change represents a matter of constitutional significance should be a matter principally for Ministers, or the courts and then Parliament. We have discussed whether there would be a difference between a subjective and an objective test. It has been said that there could be judicial review of even a subjective test, although it seems rather odd that if a Minister objected to judicial interference, such interference would not be ruled out on the basis of the subjective test in the Bill. The difference would be the kind of test that the courts would apply. There would be a difference between saying what a Minister considered—or perhaps, in certain circumstances, what a Minister reasonably considered—and deciding what actually is the law and a matter of constitutional significance. The question is not whether judges have a place in the system, but the test that they use when exercising their powers. A further question has been raised about whether this would make any difference in practice. My view differs slightly from that of my hon. Friend the Member for Somerton and Frome (Mr. Heath) because I think that it will. If Ministers were to face judicial review on the basis of what is really, in law, a matter of constitutional significance, they would be more risk adverse. They would not want to waste everyone’s time by bringing forward a regulatory order that would not get through the courts. As a matter of constitutional propriety, that is right, because there should be a bias in favour of full parliamentary procedure when dealing with matters affecting the political process. This is not a question of Parliament versus the courts—the opposite is the case. If a court found that a regulation concerned a matter of constitutional significance, the matter would have to be brought back to the House and dealt with by way of a full Bill. The main point of contention throughout our debates on this Bill has been what can be pushed through by statutory instrument and what should be dealt with through primary legislation. As part of the constitutional conversation that goes on among the Government, the courts and Parliament, it is appropriate that the courts should have the right to determine the extent of scrutiny that we should give such matters. The question for a court is not what the Government’s policy should be, or what constitutional changes should be made, but the procedure that should be used to decide the matter. Amendment (a) would ensure that if a court decided that a matter was one of constitutional significance, it would have to be dealt with by way of a full Bill—the full parliamentary procedure. The idea that Ministers should have a privileged right to decide what is a matter of constitutional significance is a constitutional monstrosity. It might well be that Ministers are well placed to make judgments on policy—the Minister referred to matters of policy—such as whether an end could be better attained without legislation, as is set out in the Bill. However, the question of constitutional significance should not be for them to judge. Ministers are interested parties. Much of our constitution is about precisely the power of Ministers and their relationship with Parliament and the law. Some 750 years ago, the jurist, Henry Bracton, said that the king is under no man, but under God and the law, for the law makes the king. The point is that Ministers’ powers result from the law, especially constitutional law, so they should not be given special privileges when determining what those powers are, otherwise the rule of law itself breaks down.