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Not even elective

Posted by Richard Wednesday, April 05, 2006

We're teetering on the brink of an elective dictatorship, complains Simon Heffer in The Telegraph today, his ire focused mainly on Labour plans for the House of Lords.

Heffer argues that, if the changes go through, it would mean that the point of a House of Lords, or indeed any second chamber, would be at an end. The Commons could inflict any legislation it liked on the country and, however much the House of Lords might like to protest, that would be that. Lord Hailsham's elective dictatorship, of which that distinguished predecessor of Charlie's warned 40 years ago, would be here.

However, Heffer does concede that, "to some of you, this might not seem too much of a departure from current practice", and indeed that is the case. Barring a few – very few – headline issues of relatively little importance in the grand scheme of things, the "Commons" – or, to be more precise – the government, can already, and does, inflict any legislation it likes. With its in-built majority, it can railroad any law through the system, so effectively it does not even bother to offer a debate before the law takes effect.

But Heffer also picks on "possibly the nastiest Bill to go before Parliament since the Six Acts of 1819", the Legislative and Regulatory Reform Bill. This, he says, would increase the already great ability of ministers to bypass Parliament in enacting, repealing or amending (according to Clause 2 of the Bill) "any legislation". Horror of horrors, the Bill would especially be used, if enacted, to import EU law into our own without any parliamentary scrutiny, but could be used for even worse things besides, says Heffer.

Boy, have we got news for him. By far the bulk of EU legislation already goes through the system in the form of Statutory Instruments, which often come into force on the day they are promulgated, without approval from Parliament. They pass into law automatically unless MPs "pray" against them but, even if they do, the in-built government majority will simply nod them through a vote, most times without even bothering to argue the case for them.

Furthermore, a significant amount of Community law now takes the form of EU (rather than domestic) Regulations. These take effect the moment they are "done in Brussels", and do not even have to be transposed into British law. They go nowhere near Parliament. And, if existing British law conflicts with them, there is the doctrine of "implied repeal", which means that previous, democratically-passed law ceases to have any effect. The government does not need the powers in the Legislative and Regulatory Reform Bill, and its presence on the statute book would only codify a situation that already exists.

Nevertheless, Heffer is still raising the alarm, inviting Parliament and the British public to demand a straight answer to a straight and vital question: "What is so wrong with our democracy that Labour wishes so ruthlessly to end it?" He is a little late, and his fears of an elective dictatorship are misplaced. We already have, in many ways, a dictatorship, and it is not even elective.

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