What’s consequential, and what’s inconsequential

This post from SpyBlog about clause 43 of the draft Constitutional Renewal Bill has attracted a lot of attention today – Guido Fawkes, Iain Dale and Dizzy have all picked up on it. But it’s nowhere near as outrageous as they fear.

Clause 43 simply gives ministers a power to make consequential amendments: in other words, amendments which follow as a consequence of the Act. Clauses like that are pretty common in legislation: section 159 of the Health and Social Care Bill, for example, makes similar provision, as does section 116 of the Pensions Bill.

Ministers will only be able to use this power to amend Acts to the extent they reasonably think need to be amended as a consequence of Parliament passing this Bill. In order to make those amendments, both houses of Parliament need to pass a resolution positively supporting those amendments. And, if ministers have gone too far in judging what amendments follow from the Bill, then their consequential amendments can be challenged by judicial review. If the courts think they;ve gone too far in deciding what’s consequential, they’ll quash the amendments.

Much ado about inconsequential consequentials, then.

11 Comments

I like the use of the phrase “makes similar provision”. “Similar” being the important words because they’re not really the same at all. The wordas may sounds and look similar, but the examples refer to quite explicitly to themselves from what I can tell, whilst the Draft Bill appears to be referring to any Act.

You’re getting me wrong if you think I’d use weaselly words to defend the government, Dizzy! I wouldn’t. And welcome to Head of Legal! It is similar provision, really. Look at clause 159(3) of the Health and Social Care Bill: it’s clear that an order under that power can amend or repeal any enactment. That includes an Act. Clause 116(2) of the Pensions Bill is a little more restricted, yes, but it clearly allows amendment or repeal of any Act prior to or passed in the same session as the Pensions Bill in consequence of Chapter 4 of Part 1. I might equally have picked clause 57 of the Child Maintenance and other Payments Bill, which is a power a bit like in the Pensions Bill to amend previous and “same session” primary legislation, or clause 53 of the Climate Change Bill which like the health and Social Care Bill gives a general power to amend any primary legislation, this time consequentially on trading schemes regulations.

Another thing worth mentioning is the existence of the House of Lords Select Committee on Delegated Powers and Regulatory Reform, which exists specifically to look at all Bills to see whether the powers they give to Ministers are reasonable. This is a very much undersung committee but its quiet way of working and non-partisan approach gives it a great deal of influence. If the committee don’t like the way this is drafted, they will suggest ways of improving it.

I’m a bit bemused by the meaning of “consequential amendments”. My guess would be that it means something along the lines of “we’re not going to allow sufficient debate for this bill, so when the inevitable cock-ups and oversights happen, we want to try to fix them without having to resort to primary legislation again, so we’ll let ourselves fix things by order instead”. Is that it?

“If the committee don’t like the way this is drafted, they will suggest ways of improving it.” And that is the Committee’s weakness. It has no statutory powers and therefore can only seek to persuade. Its recommendations are not in any sense mandatory. I have every admiration for the Lords, who have done much good in curbing the excesses and stupidities of the lower house, but ultimate power rests in the Commons. With the current huge majority and intellectual poverty that is an extremely dangerous situation. I do not believe we should cling to the hope of the Committee’s good intentions.

I’m a bit bemused by the meaning of “consequential amendments”. My guess would be that it means something along the lines of “we’re not going to allow sufficient debate for this bill, so when the inevitable cock-ups and oversights happen, we want to try to fix them without having to resort to primary legislation again, so we’ll let ourselves fix things by order instead” Close. One common oversight is “we forgot to repeal some obscure provision from an Act passed when Anne was Queen.” With the consequential amendments power, they can repeal it. The alternative is the American system where a court will deem the newer Act to override the older one. American law has many more inactive provisions than British – ie ones the courts have decided are unconstitutional or overridden by other legislation.

Richard Thank-you for this. I’m no lawyer (as you can probably tell), but I thought there was a doctrine of implied repeal to deal with this kind of thing? IIRC though, implied repeal isn’t supposed to be used for constitutional acts, so I can see why a politician would want to include a power to amend by order. The question we have to ask though is: “Is it right that a politician should have the power to amend by order”. Is the effect of including these clauses in a constitutional act to give politicians power to amend earlier constitutional acts by order – the Bill of Rights perhaps? If say, the BoR did something inconvenient like demanding trial before punishment, could the Minister place an order before the house to repeal the relevant section, provided this was consequent to an Act legalising punishment without trial? “We forgot to repeal this clause in the Bill of Rights – it predates even Queen Anne!”

head of legal, Have you any comments on the proposed Counter Terrorism Bill 2008, in particular Part 6, which allows the Home Secretary to exclude juries and/or family members from selected Inquests, and allows ‘specially appointed’ coroners to undertake inquests, under the cloak of ‘National Security’? (The inquests of the July 7th victims & of Jean Charles de Menezes have yet to take place). More info/research is here.

Completely agree with you on this. I have worked in public and private sectors and assisted a Scottish parliament committee. Looking at some of the Scottish Acts I’ve had direct input in ss 76 Abolition of Feudal Tenure etc (Scotland) ACt 2000, s 128 TItle Conditions (Scotland) Act 2003, and others contain Henry VIII clauses. The Subordinate Legislation committee in the Scottish Parliament reviews each bill and comments adversely on these but has not objected to the use of such a clause (other than to caution against overuse) particularly in the context of the Constitutional Renewal Bill which will inevitably lead to a number of consequentials that cannot be immediately identified given the scope of the bill. Of course if we had a general written constitution and civil commercial and criminal codes such things wouldn’t generally be necessary 😉