Coronavirus and EU exit have exposed the unacceptable scrutiny regime governing delegated legislationby Ruth Fox and Brigid Fowler / September 11, 2020 / Leave a comment
Whether the UK exits the transition period on 31st December with or without an EU free trade agreement, the period between now and Christmas will see parliament face another slew of Brexit-related delegated legislation.
To prepare for the end of transition, the government expects to lay another 250-300 statutory instruments (SIs), through which ministers make law without parliament having to pass a new act. Many will be politically sensitive. Given that this new surge of Brexit SIs will come on top of the large and controversial body of coronavirus-related regulations, an under-the-radar question for the autumn is whether SIs’ heightened public and political profile will finally push more parliamentarians to commit to reform the way this legislation is scrutinised.
A growing number of MPs, particularly on the government backbenches, are expressing frustration about “government by diktat” during the pandemic. While most SIs are already law when they are laid before parliament for scrutiny (that is, they are “made” SIs, not drafts), the coronavirus SIs are highlighting particular problems with the process.
Firstly, there can be a mismatch between the political salience and everyday impact of regulations and the scrutiny procedure to which they are subject. For example, the quarantine regulations are “negative” SIs, so they do not require parliamentary approval and are only exceptionally subject to debate, and only if the government provides time. The recent SI which extends permissible pre-trial custody by 56 days (with the aim of addressing the backlog in the courts) is also a negative instrument, again making a significant incursion on an individual’s liberty without a requirement for advance parliamentary debate and approval.
An unusually high share of coronavirus SIs are subject to the “made affirmative” scrutiny procedure —so are law before being scrutinised but at least require retrospective parliamentary approval. However, concerns remain because most such coronavirus SIs—like the various “lockdown” regulations—are being made using the urgent power in the Public Health (Control of Disease) Act 1984. This is subject to little constraint. Even if a measure has been trailed in the media for days, a minister only needs to declare the matter urgent to be able to use the power to make an SI on a Friday and bring it into effect on Saturday, all without prior parliamentary scrutiny.
The government’s approach to the pandemic powerfully highlights the extent to…