Reflections on the Consideration Stage of the Justice Bill, by Daniel Greenberg, Barrister specialising in legislation
The Report of the Consideration Stage of the Justice Bill on 2 June 2015 contains an important exchange between members of the Committee for Justice and the Minister of Justice about a power in the Bill to make supplementary, incidental, consequential and transitional provision, that would allow follow-up amendments of other legislation to be made by secondary legislation if the need for them arose after the Bill was enacted.
As the Chairperson of the Committee said: “While this may seem a dry debate about technical clauses, it is about much more than that. It relates to public accountability and the checks and balances on the Executive by this legislative Assembly.”
The response from the Minister rightly points out that the debate about public accountability in the context of legislative scrutiny depends on the context and circumstances of each legislature, and one cannot theorise in the abstract about what is and is not appropriate.
The fundamental issue is, however, a general one: that legislatures are not there to pass governments’ legislation, but to scrutinise it. Of course, the elected Government has a right to “get its business done”, and scrutiny must not become an excuse for permanent or unreasonable delay. But equally of course, there is no point in having a legislature if it is to act simply as a rubber stamp for the decrees of the Executive.
If it served no other purpose, the debate about this power served as a reminder from the Assembly to itself that it has no intention of being a rubber stamp, even on matters that can be designated as being “technical” or where a particular power has been used in other contexts: as the Chairperson said: “Members will know that good legislative scrutiny requires consideration of all parts of a Bill, including the provisions often described as technical in nature, which determine the effect of the legislation once enacted. … Having similar clauses in other Bills is not in itself an argument to have it in this Bill”.
The Department described the clause 86 power as being something of a safety blanket in case the operation of the legislative changes throws up some unexpected difficulty or to address necessary consequential changes that have inadvertently been overlooked during the drafting of the Bill. As the Minister said, it would be a bad use of the Assembly’s time to have to bring forward a new Bill every year or so merely to handle minor clarifications and corrections of matters on which the principle had already been decided. And on a Bill as complicated as this one, which will inevitably have consequential implications in every area of the substantive law, the scope for unexpected difficulties is considerable, and even the expert lawyers and legislative drafters available to the Executive cannot reasonably be expected to have found every possible consequential amendment in advance.
What is at issue is not whether primary and secondary legislation should be used to complement each other, with the latter being used to ensure that the Assembly’s time is properly focused on matters of principle; the issue is whether the powers to make secondary legislation are being defined with the specificity that allows the Assembly to delegate the power secure in the knowledge that it is not signing a blank cheque, or compromising fundamental principles of legislative scrutiny as the key to democratic accountability. In that respect, the Chairperson reported that “The Committee did not agree with the Department’s assessment that the purposes for which the power could be used are reasonably precise.” There are various ways in which a power of this kind could be circumscribed expressly so as to ensure that it gave a robust tool to the Executive to make necessary consequential changes, while giving the Assembly and citizens confidence that the powers delegated were necessarily constrained and were not even theoretically open to abuse.
And there is a deeper issue: as the Chairperson concluded – “I believe that the Justice Committee has carried it out its legislative scrutiny function rigorously and has sent out a message to all Departments that every clause in a Bill, whether to give effect to policy or technical in nature, will be questioned, and they must be able to justify its inclusion in a Bill and the breadth of powers that it provides.”
Although it is possible to detect a slight element of frustration in the Minister’s response on the questions surrounding this power on this occasion, what is more important is that by his response he has taken the opportunity to read into the record an affirmation by the Executive of the fundamental importance of legislative scrutiny of provisions of all kinds, and of the Executive’s confidence in, and reliance on, the Assembly’s ability to carry out that scrutiny at the required level.
There may have been slight differences of nuance around the effectiveness of the scrutiny process as applied to secondary legislation, but there were no differences of emphasis in the speeches of the Chairperson and the Minister as to the nature of legislative scrutiny as a fundamental of the democratic process. If for nothing else, therefore, the debate around clause 86 will have been welcomed by all in the Assembly, and particularly by those who serve on its Committees, as a re-affirmation of the crucial role that they serve in stress-testing every line of every legislative provision that comes before them.