The Prime Minister claims to be defending liberty but a barely noticed Bill will rip the heart out of parliamentary democracy
by Henry Porter
The Legislative and Regulatory Reform Bill is hardly an aerodynamic title; it doesn't fly from the lips. People have difficulty remembering the order of the words and what exactly will be the effect of this apparently dull piece of lawmaking.
But in the dusty cradle of Committee A, a monster has been stirring and will, in due course, take flight to join the other measures in the government's attack on parliamentary democracy and the rights of the people. The 'reform' in the title allows ministers to make laws without the scrutiny of parliament and, in some cases, to delegate that power to unelected officials. In every word, dot and comma, it bears the imprint of New Labour's authoritarian paternity.
Like all Labour's anti-libertarian bills, it appears in relatively innocuous guise. The bill was presented last year as a way of improving a previous Labour act and is purportedly designed to remove some of the burden of regulation that weighs on British business and costs billions of pounds every year. Labour says it will enable ministers to cut regulation without needing to refer to parliament and so simplify and speed things up.
The reality is that the beneficiaries of this bill will not be industry and business, but ministers and the executive, who will enjoy a huge increase in their unscrutinised power. As with the Civil Contingencies Act 2004, which was presented as modernising local and national emergency measures but which went much further to give ministers arbitrary powers, this bill takes another chunk out of our centuries- old democracy.
The really frightening thing about last week's proceedings is that there were just two journalists watching as the minister piloting the legislation, Jim Murphy, refused to debate constitutional implications. Instead, he intoned replies drafted in advance by himself and, presumably, his civil servants. Disgracefully, he dismissed as 'debating points' considered objections from Tories Christopher Chope and Oliver Heald and Liberal Democrats David Heath and David Howarth. All raised the Kafkaesque possibility that this bill was so demonically drafted that an unscrupulous government could use it to modify the bill itself and so extend its powers even further.
Watching, I reflected that this was truly how democracy is extinguished. Not with guns and bombs, but from the inside by officials and politicians who deceive with guile and who no longer pretend to countenance the higher interests of the constitution.
The 'debating points' were rather more than that. They concern the powers that may be granted to ministers that could further damage the concept of habeas corpus, alter the law on Britain's relationship with the Commonwealth, on the relationship with the EU, on extradition, the appropriation of property and the criminal law. In theory, even the monarchy could be affected.
This is to say little about common law, the centuries of precedents and rulings which contain so many of the historic rights of British culture. 'Oh no,' said the minister, as if talking to a child, 'ministers will give assurances; they will confine themselves to the regulations that concern business.'
If that is the case, why does the bill not say so? Why is it drafted so loosely? Why is Jim Murphy doing so much to protect its versatility? Why won't he put the safeguards in the bill from the start? There can be only one answer: ministers want to bypass parliament and transfer authority to themselves and their officials under the cover of helping business.
Mr Murphy has let it be known that the government might concede powers for select committees to veto use of the fast-track process for issues they consider controversial. But it is worth remembering that membership of select committees is controlled by the whips and that the chairmen are generally biddable. We should also wonder why Mr Murphy has not already drafted this veto, if he genuinely wants to protect and reassure parliament.
The essential point, however, is that the individual decisions taken by ministers as a result of this new law will not be scrutinised in the chamber of the House of Commons.
Sometimes, I wonder if those of us worried about the attacks on British democracy by Tony Blair's government are getting things out of proportion or misunderstanding the Prime Minister's mission, as he described it in last week's Observer
I certainly understand that the capillaries of a society run from bottom to top, bearing all the bad news, intractable problems, mood swings and crises; that it is all ceaselessly pumped upwards in the direction of the Prime Minister; and that the view afforded in Downing Street must sometimes be truly extraordinary, a seething, organic, Hogarthian panorama of delinquency and unreason.
A Prime Minister must try to reach beyond the day-to-day business of government, frantic though it is, and make sense of what he sees below, seek the connecting threads, order up the policies and implement them so that improvement becomes possible. Few will disagree that this is the chief impulse of Tony Blair's premiership. As he told us long ago, he is a moderniser. Modernising is still the closest thing he has to a political ideology and it was significant how many times the words modern and modernity appeared in last week's article. At one point, he declared: 'For me, this is not an issue of liberty but of modernity', as if liberty and modernity were somehow at odds.
Because he is by his own account well-intentioned, he believes that nothing should get in the way of this modernising purpose, the exercise of his benevolent reason on the turbulent society below. Like Mrs Thatcher, he has become almost mystically responsible for the state of the nation. And like Mrs Thatcher, he finds that after a long period in Number 10, he is still surrounded by sluggishness and resistance. Public services are slow to reform; the judiciary obstructs ministerial action with footling concerns about individual rights; and parliament is agonisingly slow to produce the fast-acting laws he craves.
You can see why, as time runs out, he has the need to cut through it all to achieve the things that he so dearly believes are right for our society. That is the way a moderniser works, because it is the only measure of success.
Yet this addiction to the idea of modernity is also a kind of arrogance about the times we live in, a sense that no Prime Minister has ever faced the problems coming across his desk. It indicates a common condition in modernisers and modernists of all hues and that is an almost complete lack of a grounding in history. If Blair was more interested in British history, he would understand that the present, while certainly unique, is not uniquely awful.
But more important, he would see the great damage his laws are doing to the institutions we have inherited - to the constitution, to the tradition of parliamentary sovereignty, to the independence of the judiciary, to individual rights and to the delicate relationship between the individual and the state. All of them are products of British history. They are not perfect, but they make up a fairly large part of the body politic. This is who we are.
This rush of laws presented to parliament in disguise, with their hidden sleeper clauses, are a disaster for our democracy. They are changing our country rapidly and profoundly. What I saw in Committee A was the triumph of Tony Blair's modernity over liberty.