Russian roulette with rights

THE GOVERNMENT’S removal of a special majority requirement before the passage of whistleblower legislation in Parliament is a significant development. It potentially opens the floodgates: governments may seek to pass more laws touching fundamental rights without super-majorities. This is a dramatic reversal of what has hitherto been legislative orthodoxy.

In proposing a simple amendment to the Whistleblower Protection Bill 2022 to delete a clause declaring the law “inconsistent with sections 4 and 5 of the Constitution” – which enshrine rights such as due process of law – Attorney General Reginald Armour told MPs this was being done considering the Privy Council’s recent ruling in the case of Dominic Suraj and others v AG.

“We are amending the legislation today consonant with a development that occurred after the bill was laid,” Mr Armour said on June 21.

In 2022, the London law lords – considering covid19-era restrictions – found local laws could be passed affecting rights without special majorities, since Parliament has an inherent power to promulgate laws in the public interest once proportionate. And so the new approach, as per the AG, is to consider the objectives of the statute.

“When you look at the totality of the legislation and you find a proportionate balance in the aim of the legislation and the rights which it impacts, there is a measure by which that legislation can then pass by a simple majority,” he advised. Other amendments were made to the bill in the committee stage in an effort to get its balance right.

In the past, the Government has been accused of passing bad laws, playing willy-nilly with the requirement for super-majorities and hastily gutting bills to secure passage.

But this is not just a question of the watering-down of provisions to evade the special-majority rule; this is a matter of saying the rule does not apply in the first place and then leaving it for courts to decide the “proportionality” of measures plainly touching rights.

The result: consequential laws might be passed, as this one was, by simple majority and even proclaimed, while legal cases snake their way through court for years. By the time a ruling comes, the damage is done.

In contrast, the polygraph legislation, also debated last week, was passed with a special-majority requirement remaining intact. It received unanimous approval from MPs. Its future implementation is, to a degree, assured.

What’s clear is that the Government’s understanding of its law-making powers has the potential to dilute the ability of the opposition and independent benches to veto laws. That might be both good and bad.

Governments may be able to get more done.

But without the inoculation of a consistent recourse to super-majorities, legislators risk playing Russian roulette with important measures affecting rights and riding roughshod over citizens.