As if forthcoming bills were not controversial enough, the Legislative and Regulatory Reform Bill, giving ministers the potential power to change any act of Parliament, is attracting heavyweight opposition, writes John Ludlow

The Easter Recess, which begins in two weeks' time, is a natural demarcation point in the parliamentary calendar. By this date, the government expects to see at least one or two of its flagship bills on the statute book.


This year is no exception, though ministers will surely breathe a collective sigh of relief if the Terrorism Bill and the Identity Cards Bill have passed their final hurdle. They managed to win Royal Assent for the highly controversial Racial and Religious Hatred Bill last month, though not without watering down their initial proposals, and it remains to be seen whether the government will also have to accept major changes to these two measures.


Joining them on the statute book before the House rises on 30 March is likely to be the Immigration, Asylum and Nationality Bill and the Criminal Defence Service Bill, both of which have benefited from important government concessions.


In the case of the immigration measure, this effectively amounts to the introduction of a one-stop appeal against both refusal decisions and removal directions, something which the Law Society and Immigration Law Practitioners Association have been fighting for since the Bill was first published.


Easter also acts a deadline for the introduction of new government bills, particularly those of a controversial nature. Once the holiday is passed, there is simply not enough time to pilot through a major bill without being boxed in by the Lords at the end of the session. For this reason, it is now certain that we will not see the Mental Health Bill or the Corporate Manslaughter Bill this year, despite their inclusion in the last Queen's Speech.


But none of this means that all controversy has disappeared. Far from it. The beleaguered education secretary, Ruth Kelly, has now published her Bill to set up a new generation of independent 'trust schools' and, though concessions have been made, the second reading in the Commons should be a major flashpoint. Later in the year the government will face another potential rebellion over changes to incapacity benefit.


Less headline-grabbing perhaps, though equally contentious, has been the Compensation Bill, or at least part 1 of it. This single clause, which amounts to a 'restatement' of the law of negligence and is meant to help tackle the problem of 'risk aversion', has led to almost universal derision.


Not least from the influential constitutional affairs select committee, which published its 'Compensation Culture' report on 1 March (see [2006] Gazette, 2 March, 5). The report does not pull its punches, calling for part 1 to be removed entirely from the Bill, and quoting the Law Society in support of the argument that its uncertainty would lead to costly satellite litigation.


It does not end there. The same report, while welcoming the thrust of part 2, which introduces regulation for claims management companies, criticises the lack of detail in the Bill. It repeats this criticism in its assessment of the NHS Redress Bill, which will establish a scheme for the victims of medical accidents to obtain redress without recourse to legal proceedings. These are concerns which the Society had articulated.


But as valid as these criticisms are, in many ways the skeletal nature of the Compensation Bill and the NHS Redress Bill merely reflect modern drafting convention. The detail in so many bills today is left to later regulation, allowing the government much greater flexibility in how they implement Acts and - in effect - how they update them. Ministers will say that this approach allows for the tweaking and fine-tuning of statutes without recourse to costly and time-consuming fresh primary legislation, while opponents will argue that it simply allows the government to by-pass important parliamentary scrutiny.


The ability to use statutory instruments to make substantial changes to Acts of Parliament has been given a recent fillip by the introduction of the Legislative and Regulatory Reform Bill (see [2006] Gazette, 2 March, 8). Essentially an extension of the 2001 Regulatory Reform Act, the new measure is designed to make it easier to remove regulatory and other burdens on business in pre-existing legislation, as well as providing a kind of fast-track procedure for non-controversial Law Commission recommendations, many of which had foundered in the past because of lack of parliamentary time.


While the stated aim of the Bill is laudable, the problem is that it gives ministers the potential power to make substantial changes to any Act of Parliament using the statutory instrument procedure. The potential for abuse is therefore great.


While welcoming the aims of the Bill, the Law Society has warned that many more safeguards are required in order to limit when and how the power is used. Above all, the Society wants to make sure that Parliament is able to challenge the use of the new procedure at an early stage and to ensure that proper scrutiny takes place where it is most needed.


John Ludlow is head of the Law Society's parliamentary unit