As mentioned in an earlier blog New restrictive regulations on freedom of information the government is planning to restrict your ability to find out what they are doing by making changes to the Freedom of Information Act and the Data Protection Act.

Passed by Parliament back in October the Legislative and Regulatory Reform Act 2006(LRR Act) is being used as the vehicle for slipping in this restriction whilst MP’s are on their Easter break.

The tool being used is a Statutory Instrument, and outlined below are the relevant parts of the LRR Act that will allow the Department for Constitutional Affairs to push this through, even though their own ‘consultation committee’ recommended against it, and MP’s asked them not to progress it via an Early Day Motion last year.

Section 1 sets out a broad power for Ministers to make any provision they consider would serve the purpose of removing or reducing a burden or reducing the overall burdens of any person affected by a piece of legislation. A burden means any of the following:

• A financial cost,
• An administrative inconvenience,
• An obstacle to efficiency, productivity or profitability,
• A sanction, criminal or otherwise, which affects the carrying out of a lawful activity.

One can only assume here that asking the Government to explain itself by making requests under the Freedom of Information Act is a burden to them, and is obviously an obstacle to their efficiency and productivity.

Section 4 restricts the power to delegate legislative functions such that they can only be delegated to government ministers, people who have had legislative power delegated to them in prior legislation or office holders or bodies created by the orders. It also restricts such delegation of legislative powers such that they have to be exercised via statutory instrument if they are delegated or conferred on ministers of the crown.

Note that an order under this LRR Act can confer legislating powers on office holders or bodies created by the order itself, thus cutting Parliament out of the loop completely.

Sections 12 to 18 set out the procedure to be followed. The Minister must first consult with various people he considers appropriate (this was done in secret), and then lay out a draft order in both Houses of Parliament with an explanatory document and recommendation for which of the following procedures to following:

• The negative procedure. Parliament has 40 days to object before the order is made, either by one House passing a resolution against it or for a committee of either House to recommend rejecting it, whereupon it will fall unless the same House rejects the recommendation. The committee can only report with its recommendation after 30 days and before 40 days have passed.
• The affirmative procedure. Parliament has 40 days to approve the order in both Houses. A committee of either House can, after 30 days and before 40 days, recommend abandoning the order in which case a resolution rejecting the recommendation is required.
• The super-affirmative procedure. Parliament has 60 days to approve the order, or recommend changes. The Minister can enact a revised order if Parliament approves, or the original order if Parliament approves.

Note that the Minister can recommend a procedure but either House can insist on a more stringent procedure, e.g. if the Minister recommends the negative procedure, either House can insist on the affirmative procedure or the super-affirmative procedure. If he recommends the affirmative procedure they can insist on the super-affirmative procedure. 30 days are allowed for each House to change the procedure otherwise the Minister’s recommendation applies.

Also, orders cannot be amended by Parliament, only accepted or rejected, and since the MP’s will all be on Easter Break, a non response will default to an acceptance.

Sneaky eh..

A fuller explanation of the LRR rules can be found here on the Magna Carta Plus News website.