Question
Whether Clause 1 of the Legislative and Regulatory Reform Bill will enable them by means of delegated legislation to (a) amend the Human Rights Act 1998; (b) amend the Scotland, Government of Wales, and Northern Ireland Acts 1998; (c) reform the Claim of Right; and (d) amend the Habeas Corpus Acts.
Answer
Part 1 of the Legislative and Regulatory Reform Bill provides a power to reform legislation by order. It also provides a power to implement recommendations made by one or more of the Law Commissions in the United Kingdom for reforming legislation or the common law. Reforms to the common law can be made only to the extent that they are implementing such recommendations, and not otherwise. The Government have made a commitment not to deliver highly controversial measures by order and not to push forward proposals that are opposed by the relevant parliamentary committees (Thursday, 9 February, Official Report, col. 1058–59)In addition, the order-making powers in the Bill are subject to a number of safeguards. All proposals for orders must undergo statutory consultation and orders must be scrutinised by specialist parliamentary committees. In addition, an order that is reforming legislation (except where merely restating provisions) or which is amending or abolishing the common law may be made only if the Minister considers that the following conditions, where relevant, are satisfied:"the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means;""the effect of the order is proportionate to the policy objective;""the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;""the provision does not remove any necessary protection; and""the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise."Where a provision is merely restating legislation or codifying the common law, the Minister must be satisfied that the provision would make the law more accessible or more easily understood.A number of topic-specific restrictions also apply to all orders. For example, an order cannot impose or increase taxation or, other than in the case of an order implementing a Law Commission recommendation, create criminal offences punishable with a penalty above certain specified limits, as under the 2001 Act.