Legislative and Regulatory Reform Act 2006
The Legislative and Regulatory Reform Act 2006 (c. 51) is an Act of the
Parliament of the United Kingdomenacted in 2006 to replace the Regulatory Reform Act 2001(RRA).
The bill which became the Act was brought before the
British House of Commonsin early 2006. As originally drafted, the Bill was controversial, as it would have granted government ministers wide powers to make secondary legislationthat could amend, repeal or replace any primary legislationor secondary legislation (known as a Henry VIII clause). The government proposed numerous amendments to the Bill on 4 May 2006and 10 May 2006, to address certain criticisms of the Bill's scope and lack of safeguards.
The Bill received its third reading in the House of Commons on
16 May 2006, and moved to the House of Lords. After its first and second readings, the bill was reported with amendments on 19 July 2006, before the summer recess. Its report stage in the House of Lords took place on 26 October 2006, and it received Royal Assenton 8 November 2006.
Part 1: Power to reform legislation
The first Part of the Bill, entitled "Power to reform legislation", permits a government minister to make
Statutory Instruments to reform legislation that is perceived to be "outdated, unnecessary or over-complicated ". [ [http://www.cabinetoffice.gov.uk/regulation/news/2006/060111.asp New Bill to enable delivery of swift and efficient regulatory reform to cut red tape - Jim Murphy] , Cabinet Officepress release, CAB/001/06, 11 January 2006.] A similar procedure is possible under the existing RRA, which permits a minister to make Regulatory Reform Orders (RROs). A review of the first 4 years of operation of the RRA, published by the Cabinet Officein July 2005, concluded that the RRA "presented a number of hurdles which inhibited the production of RROs", its powers were "too technical and limited", and the procedure should be "extended to deliver non-controversial proposals for simplification". [Explanatory notes, paragraph 5.]
Under clause 1 of the Bill, a minister can only make an order for two purposes: "reforming legislation" or "implementing recommendations" made by the
Law Commission, the Scottish Law Commissionor the Northern Ireland Law Commission, with or without changes. Part of the justification for the Bill is that reports of the Law Commissions are often not acted upon for years after they are published. Under clause 2, an order may amend, repeal or replace any primary or secondary legislation.
Before making an order, clause 3 of the Bill requires the relevant minister to be satisfied that a legislative change is required to secure the policy objective, that the proposed order is "proportionate", "strikes a fair balance" between the public interest and the interests of any persons adversely affected, does not remove any "necessary protection", and does not prevent anyone from exercising rights or freedoms that they "might reasonably expect to continue to exercise".
The Bill contains some express limitations. Clause 5 prevents the Bill being used to "impose or increase taxation"; clause 6 prevents orders under the Bill being used to create any new
criminal offencethat is punishable by imprisonment for more than 2 years; and clause 7 prevents the Bill being used to authorise any forcible entry, search or seizure, or compel the giving of evidence (subject to exceptions where merely restating existing legislation, or implementing the recommendations of a Law Commission). Clause 8 prevents orders being made in relation to matters within the legislative competence of the Scottish Parliament, and Clause 9 prevents orders being made to alter the functions of the Welsh Assemblywithout its prior consent.
Ministers are required to consult widely before making an order under the Bill, lay a draft of a proposed order before Parliament with an explanatory documents. The draft order may pass through Parliament to become a
Statutory Instrumentunder the existing "negative resolution" or "affirmative resolution" procedures, or a new "super-affirmative resolution" procedure.
Controversially, the order-making powers in the Bill are potentially very wide. Although, for example, the Bill (if it is enacted as drafted) cannot be used to introduce new taxes, there is no restriction on the Bill being used to amend itself; and the tests that a minister must satisfy before making an order are very subjective. An order would be subject to supervision by the High Court by way of
judicial review, but it would be difficult to show that a minister was not "satisfied" that the requirements for making an order were met. In January 2006, the Bill was called "potentially one of the most constitutionally significant Bills that has come before the House for some time" by the House of Commons Select Committee on Regulatory Reform; [ [http://www.publications.parliament.uk/pa/cm200506/cmselect/cmdereg/878/87804.htm Select Committee on Regulatory Reform - First Special Report] , HC 878, 31 January 2006.] while supporting the move to cut " red tape", the Committee asked for extra safeguards to avoid potential "abuse" of the powers in the Bill. [ [http://news.bbc.co.uk/2/hi/uk_news/politics/4683726.stm Red tape law 'must not be abused'] , BBC News, 6 February 2006.] Earlier in January, the House of Lords Select Committee on the Constitution wrote to the Lord Chancellor to express its concern that the Bill could markedly alter the respective and long-established roles of Ministers and Parliament in the legislative process, and its disappointment that the bill had not been published in draft. [ [http://www.parliament.uk/documents/upload/Letter%20to%20Lord%20Chancellor%2023%2001%2006%20%28word%29.doc Letter from the House of Lords Select Committee on the Constitution to the Lord Chancellor] , 23 January 2006(MS Word); also published in [http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/194/19409.htm Appendix 1] to the House of Lords Constitution Select Committee Eleventh Report, HL 194, 24 May 2006, together with a reply from the Lord Chancellor.]
The Bill has been criticised heavily in articles and correspondence published in the press. In "
The Times", journalist Daniel Finkelsteindubbed it the "Bill to End All Bills", [ [http://www.timesonline.co.uk/article/0,,21129-2040625,00.html How I woke up to a nightmare plot to steal centuries of law and liberty] , "The Times", 15 February 2006.] and Liberal Democrat Member of Parliament David Howarthcalled it the "Abolition of Parliament Bill". [ [http://www.timesonline.co.uk/article/0,,1072-2049791,00.html Who wants the Abolition of Parliament Bill?] , " The Times", 21 February 2006.] When the Green Party passed a motion at their conference against the Bill, it was attacked as threatening to shatter the foundations of democracy. [ [http://www.greenparty.org.uk/news/2468 Greens attack "Abolition of Parliament" Bill] , Green Party press release, 18 March 2006.]
The Bill has also been criticised by legal professionals. The
Law Societypublished a briefing note before its Second Reading, expressing concerns that safeguards were too weak, that secondary legislation should not be able to authorise further subordinate legislation, that the powers of non-Ministers acting under delegated powers were not restricted , and that there was no procedure for Parliament to challenge use of the Bill. [ [http://www.lawsociety.org.uk/secure/file/152472/e:/teamsite-deployed/documents//templatedata/Internet%20Documents/Parliamentary%20briefings/Documents/legregrefbillhoc2ndreading090206.pdf Legislative and Regulatory Reform Bill, House of Commons - Second Reading] , Law Society, 9 February 2006.] In a letter published in "The Times", six professors of law at the University of Cambridgewrote that the Bill could be used to create a new offence of incitement to religious hatred, punishable by two years' imprisonment; curtail or abolish trial by jury; introduce house-arrest; allow the Prime Ministerto sack judges; rewrite the law on nationality and immigration; and "reform" the Magna Carta, saying that "It would, in short, create a major shift of powers within the State, which in other countries would require an amendment to the constitution; and one in which the winner would be the executive, and the loser Parliament." [ [http://www.timesonline.co.uk/article/0,,59-2042165,00.html Letters to the Editor] , "The Times", 16 February 2006.] Joshua Rozenbergwrote in "The Telegraph" that Clifford Chancehad pointed out that the Bill "usurps the power of Parliament", [ [http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/02/09/nlaw09.xml&sSheet=/news/2006/02/09/ixhome.html Three more reasons to be depressed] , "The Telegraph", 9 February 2006.] and David PannickQC wrote in "The Times" that the Bill "would confer astonishingly broad powers on ministers to make the law of the land". [ [http://www.timesonline.co.uk/article/0,,200-2057835,00.html Another blow to Parliament?] , "The Times", 28 February 2006.]
Jeremy LeverQC and George Peretzpointed out in a letter to "The Times" on 23 February 2006that the Solicitor General told Parliament on 13 July 1972that the similar powers in section 2(2) of the European Communities Act 1972would only be used for "consequential amendments of a small, minor and insignificant kind", although they have been used subsequently to implement EC legislation that has made substantial changes to UK law. [ [http://www.timesonline.co.uk/article/0,,59-2053339,00.html Letters to the Editor] , "The Times", 23 February 2006.]
An article in "The Guardian" compared the Bill to the
Civil Contingencies Act 2004, saying that the Bill was presented as modernising measure but actually gave ministers arbitrary powers, taking "another chunk out of our centuries-old democracy". [ [http://politics.guardian.co.uk/constitution/comment/0,,1724047,00.html How we move ever closer to becoming a totalitarian state] , " The Guardian", 5 March 2006.] An article published in "The Independent" in June 2006 that analysed the last nine years of legal reform attacked the Prime Minister and his Government, claiming that the numerous changes and laws passed since it has been in power have reduced the power of democracy in the UK; the Bill was one example the journalist gave of the kinds of methods being employed to do this. [ [http://news.independent.co.uk/uk/politics/article1129827.ece Blair Laid Bare: the article that may get you (arrested for reading)] .]
After the Bill completed its committee stage in the House of Commons, it was reported that the House of Commons Procedure Committee had complained that the Bill "tips the balance between the executive and Parliament too far in the Government's favour". [ [http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/03/18/nbill18.xml&sSheet=/news/2006/03/18/ixhome.html MPs angry at Bill to end all Bills] , "The Telegraph",
18 March 2006.] . A second report published by the House of Commons Select Committee on Public Administration on 20 April 2006stated that, "As currently drafted, the Legislative and Regulatory Reform Bill gives the Government powers which are entirely disproportionate to its stated aims." [ [http://www.publications.parliament.uk/pa/cm200506/cmselect/cmpubadm/1033/103305.htm Public Administration - Third Report - Legislative and Regulatory Reform Bill] , HC 1033, 20 April 2006.]
In May 2006, the House of Lords Constitution Select Committee published a report which drew attention to a number of issues. The report criticised the manner in which the bill was introduced, commenting that the consultative process was "lamentable", that the bill was not debated on the floor of the House of Commons, as is long accepted practice for bills of first class constitutional importance, and that the late amendments, while welcome, were "something of an indictment of the processes of policy-making and legislation". The report also noted a repetition of the delegation of "unprecedentedly wide power" to ministers, as the Regulatory Reform Act 2001 was described in December 2000; and the further ability for ministers to change legislation to implement recommendations of the Law Commission. The report concluced that the bill, after amendment, was more balanced than before, but remained "over-broad and vaguely drawn", and further safeguards were necessary. [ [http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/194/19402.htm Constitution - Eleventh Report - Legislative and Regulatory Reform Bill] , HL 194,
24 May 2006.]
The government minister responsible,
Jim Murphy, said, in winding up the debate on Second Reading on 9 February 2006: "I give the House clear undertakings, which I shall repeat in Committee, that the orders will not be used to implement highly controversial reforms", [ [http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060209/debtext/60209-32.htm Winding up the debate on second reading] , " Hansard", Col.1101, 9 February 2006.] although there is no such restriction in the text of the Bill itself. Respected barrister Francis Bennion(formerly Parliamentary Counsel, and author of the authoritative "Bennion on Statutory Interpretation") wrote in a letter to "The Times" on 20 February 2006that "The Bill opens the door to much-needed reforms in what is called lawyer's law". [Letters to the Editor: Time to Reform, The Times, 20 February 2006]
In May 2006, a report from the House of Lords Select Committee on Delegated Powers and Regulatory Reform found that clause 1 of the bill was "not far different" from the power granted under the Regulatory Reform Act 2001, and so not inappropriate. While recognising the need for sub-delegation of order-making powers in some situations, the report considered that the case for unlimited sub-delegation was sufficiently made out, and that some limits should be imposed, for example, by specifing categories of person (such as local authorities) to whom powers could be delegated. The report found that the powers of Parliamentary supervision in the amended bill were adequate, but the ability for a minister to change the law to implement recommendations of Law Commission or to consolidate and simplify legislation were thought to be inappropriate, saying that "the statute law should be made by Parliament, not by Ministers". [ [http://www.publications.parliament.uk/pa/ld200506/ldselect/lddelreg/192/19202.htm Delegated Powers and Regulatory Reform - Twentieth Report - Legislative and Regulatory Reform Bill] , HL 192,
24 May 2006.]
Part 2: Regulators
The second Part of the Bill, entitled "Regulators", implements recommendations of a review led by
Philip Hampton, entitled "Reducing administrative burdens: effective inspection and enforcement", published in the Hampton Reportin a March 2005. Clause 19 contains two principles that regulators must have regard to when exercising particular regulatory functions: regulatory activities must be carried out in a way which is "transparent, accountable, proportionate and consistent", and should be targeted only at cases in which action is needed. Clause 20 and enables a minister to introduce a mandatory Code of Practicefor regulators.
Part 3: European Community legislation
The third Part of the Bill, entitled "Legislation Relating to the European Communities etc", makes provision about legislation relating to the
European Communities, to reduce the number of UK Statutory Instruments required to transpose EU legislation into domestic UK law. These provisions were copied from the European Union Billwhich is also before Parliament, but which had made little progress.
House of Commons
The Bill was introduced in the House of Commons by
Jim Murphy, Parliamentary Secretaryto the Cabinet Office, on 11 January 2006, becoming Bill 111 of the 2005/6 Parliamentary session. [http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060111/debtext/60111-09.htm#60111-09_head1 First reading] , " Hansard", Col.305, 11 January 2006.] A Bill of this nature would usually be introduced by a more senior minister, such as the Chancellor of the Duchy of Lancasteror the Cabinet Office Minister, but a replacement for John Hutton had not been announced in over two months since he was promoted to replace David Blunkettas Secretary of Stateat the Department of Work and Pensionson 2 November 2005. Hilary Armstrongbecame Chancellor of the Duchy of Lancaster in the Cabinet reshuffle on 5 May 2005.
The Bill had its formal First Reading on
11 January 2006and Second Reading on 9 February 2006, [ [http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060209/debtext/60209-17.htm#60209-17_head1 Second reading] , " Hansard", Col.1048, 9 February 2006.] when a programme motion(to curtail debate) [ [http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060209/debtext/60209-32.htm#60209-32_head0 Programme motion] , "Hansard", Col.1103, 9 February 2006.] and a money resolutionwere passed. [ [http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060209/debtext/60209-33.htm#60209-33_head0 Money resolution] , "Hansard", Col.1106, 9 February 2006.] The Bill was considered by House of Commons Standing Committee A in eight sittings on 28 February, 2 March, 7 Marchand 9 March 2006. [ [http://www.publications.parliament.uk/pa/cm200506/cmbills/111/06111csp.htm Standing Committee Proceedings] , "Hansard", 28 February, 3 March, 7 March, 9 March 2006.] A number of government amendments were agreed, but none of the amendments proposed by the opposition parties were passed.
The Government published proposed amendments to the Bill on
4 May 2006which are intended to "to put beyond doubt that the Legislative and Regulatory Reform Bill will only be used to deliver the Government's better regulation agenda". [ [http://www.cabinetoffice.gov.uk/newsroom/news_releases/2006/060504_billamends.asp Government amends Legislative and Regulatory Reform Bill] , Cabinet Officepress release, CAB 022/06, 4 May 2006.] The amendments make substantial changes to the Bill, replacing the first two clauses entirely with new clauses under which an order can only be made for the purposes of "removing or reducing any burden" from legislation, or of securing that regulatory activities are "carried out in a way which is transparent,accountable, proportionate and consistent" and are "targeted only at cases in which action is needed", or of implementing the recommendations of a Law Commission. The amendments also add a power for a Committee of either of the Houses of Parliament to prevent a draft order being passed, subject to the Committee being over-ruled by the relevant House. Further "follow-up" amendments were published on 10 May 2006to "ensure total clarity on what this Bill is intended to deliver". [ [http://www.cabinetoffice.gov.uk/newsroom/news_releases/2006/060504_billamends.asp Government amends Legislative and Regulatory Reform Bill] , Cabinet Officepress statement, 10 May 2006.] Amongst other things, the new amendments ensure that the Orders under the Bill could not be used to amend the Bill itself, once it is enacted, nor to amend the Human Rights Act 1998.
The Bill was debated on Report from the Standing Committee on
15 Mayand 16 May 2006. [ [http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060515/debtext/60515-0063.htm#06051513000003 Report Stage] , "Hansard", Col.708, 15 May 2006.] [ [http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060516/debtext/60516-0104.htm#06051680000001 Report Stage] , "Hansard", Col.871, 16 May 2006.] A number of government amendments were made to implement the changes announced earlier on 4 May, and further opposition amendments were debated but rejected. The Bill received its Third Reading in the House of Commons following the debate on 16 May. [ [http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm060516/debtext/60516-0112.htm#06051719004848 Third reading] , "Hansard", Col.960, 16 May 2006.]
House of Lords
The Bill moved to the
House of Lords, where it was presented by Lord Bassam of Brighton and received its formal First Reading on 17 May, and House of Lords Bill 109 of the 2005/6 Parliamentary session. [ [http://www.publications.parliament.uk/pa/ld199697/ldhansrd/pdvn/lds06/text/60517-04.htm#60517-04_head0 First Reading] in the House of Lords, "Hansard", Col.271, 17 May 2006.] It had its Second Reading on 13 June, [ [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/60613-04.htm#60613-04_head2 Second reading] , " Hansard", Col.120, 13 June 2006.] and it was debated in a Committee of the whole house on 3 July, [ [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/60703-0815.htm#0607031000003 House of Lords Committee] , "Hansard", 3 July 2006.] 10 July[ [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/60710-0886.htm#0607106000004 House of Lords Committee] , "Hansard", 10 July 2006.] and 19 July. [ [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/60719-1024.htm#06071986000002 House of Lords Committee] , "Hansard", 19 July 2006.]
After completing its Committee stage on
19 July, the Bill was reported with amendments. [ [http://www.publications.parliament.uk/pa/ld199697/ldhansrd/pdvn/lds06/text/60719-1031.htm#06071995000002 End of Committee Stage] in the House of Lords; Bill reported with amendments, "Hansard", Col.1404, 19 July 2006.] The Bill had its report stage in the House of Lords on 26 October, [ [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/61026-0002.htm#06102652000009 Third Reading] in the House of Lords, "Hansard", Col.1286, 26 October 2006.] after Parliament returned from its summer recess, and its Third Reading was held on 3 November. [ [http://www.publications.parliament.uk/pa/cm200506/cmwib/wb061028/pub.htm List of Public Bills] from the Parliament Weekly Information Bulletin, 28 October 2006.]
The Bill received
Royal Assenton 8 November 2006. [ [http://www.cabinetoffice.gov.uk/regulation/news/2006/061109.asp Legislative and Regulatory Reform Bill receives Royal Assent] , Press release CAB066/06 from the Cabinet Office, 8 November 2006.]
* [http://www.publications.parliament.uk/pa/cm200506/cmbills/111/06111.i-ii.html Text of the Bill] introduced to the House of Commons on
11 January 2006
* [http://www.publications.parliament.uk/pa/cm200506/cmbills/111/en/06111x--.htm Explanatory notes to the Bill] as introduced on
11 January 2006
* [http://www.publications.parliament.uk/pa/cm200506/cmbills/141/2006141.htm Text of the Bill] on Report,
9 March 2006
* [http://www.publications.parliament.uk/pa/ld200506/ldbills/109/2006109.htm Text of the Bill] introduced to the House of Lords on
17 May 2006
* [http://www.publications.parliament.uk/pa/ld200506/ldbills/109/en/06109x--.htm Explanatory notes to the Bill] as introduced on
17 May 2006
* [http://www.publications.parliament.uk/pa/pabills/200506/legislative_and_regulatory_reform.htm Amendments] in the House of Lords
* [http://www.publications.parliament.uk/pa/ld200506/ldbills/146/06146.i-ii.html Text of the Bill] as amended in Committee in the House of Lords,
19 July 2006
* [http://www.cabinetoffice.gov.uk/regulation/documents/pdf/br_act_review.pdf Review of the Regulatory Reform Act 2001] ,
Cabinet Office(PDF, 59 pages)
* [http://www.hm-treasury.gov.uk/media/A63/EF/bud05hamptonv1.pdf Reducing administrative burdens: effective inspection and enforcement (Philip Hampton, March 2005)] ,
HM Treasury(PDF, 147 pages)
* [http://www.cabinetoffice.gov.uk/regulation/documents/pdf/amendments.pdf Amendments] published by the Cabinet Office,
4 May 2006(PDF, 10 pages)
* [http://www.cabinetoffice.gov.uk/regulation/documents/bill/ammend.pdf Further amendments] published by the Cabinet Office,
10 May 2006(PDF, 3 pages)
* [http://www.cabinetoffice.gov.uk/regulation/reform/bill/index.asp The Legislative and Regulatory Reform Bill - Cabinet Office]
* [http://saveparliament.org.uk/ Save Parliament] - a campaign against this Bill
* [http://bill111.wordpress.com/ Save Parliament Blog]
* [http://news.bbc.co.uk/1/hi/uk_politics/4815240.stm Fear over plans to cut red tape] ,
BBC News, March 17 2006.
* [http://www.bbc.co.uk/radio4/today/listenagain/zwednesday_20060222.shtml Interview] with
Kenneth Clarkeand Jim Murphy, BBC Radio 4, " Today programme", February 22 2006. (Clip starts at 07:55)
* [http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2006/03/27/do2701.xml&sSheet=/opinion/2006/03/27/ixopinion.html Telegraph Opinion: Labour isn't wicked - but it's doing just what the Nazis did]
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