How abuse of delegated legislation makes a mockery of lawmaking
We are witnessing a legislative horror show
Delegated legislation is the way we make the vast majority of our laws in the UK. While only a handful of Acts of Parliament are passed each year, the number of individual pieces of delegated legislation, a form of legislation which is made by ministers under powers from Acts of Parliament, is in the thousands. This has been the case for many decades now.
Given this reality, our system for making and scrutinising delegated legislation is a critical part of our constitutional arrangements, including for safeguarding the rule of law. Unfortunately, that system is demonstrably not fit for purpose: while the executive branch accumulates more and more sweeping powers to legislate, parliament’s processes remain too weak to provide meaningful scrutiny. The system itself, in its current unsatisfactory state, often does more to undermine the rule of law than promote it. Examples are numerous, so we will focus on some of the experiences with the over 700 regulations passed so far to facilitate Brexit.
It is a basic feature of the rule of law that law must be open and clear. People need to be able to know what their rights, duties and obligations are in order to plan their lives. Our social and economic life is built on this idea. While primary legislation is by no means perfect, our system of delegated legislation is capable of descending into confusion and even absurdity. For instance, The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 amended 32 other laws. Understanding a regulation such as this requires something of a legal quest. In practical terms, it pushes the reasonable limits of accessibility. The Animal Health, Plant Health, Seeds and Food (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 proposed amendments to a law that had not yet been laid before parliament. It was quite simply not possible to understand what its purpose was. Our system is not always like this, but it is capable of producing laws that are opaque and effectively unknowable to all but the most dedicated parliamentary trainspotters.
The information the government provides to help make things clearer routinely does not fulfil that purpose. For instance, the Home Office laid an Explanatory Note with the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 which was initially longer than the 75-page instrument itself. The Secondary Legislation Scrutiny Committee in parliament described the note as “impenetrable” and asked the Home Office to relay it. The committee pointed out that it gave no assessment of the financial or societal costs of the law to the UK’s criminal justice or policing systems. Even after the Home Office tried again, the committee still found that the note was not adequate. As a result of these problems, the committee relied on a BBC News article in order to assess the impacts of the law.
Proper scrutiny of delegated legislation is not just a procedural nicety, it can impact the clarity and overall quality of our laws. In this way, scrutiny, when done well, can promote the rule of law. A major issue in the current system is the parliamentary time assigned to examine and debate delegated legislation. The Aviation Safety (Amendment etc) (EU Exit) Regulations 2019 are 146 pages long and were debated for 21 minutes in the House of Commons. The Product Safety and Metrology etc (Amendment etc) (EU Exit) Regulations 2019 are 619 pages long and were debated in the Commons for 52 minutes and the Lords for 51 minutes. The Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019 are 26 pages long and made 36 different amendments to existing legislation, which Labour peer Denis Tunnicliffe described as having “no themes or interrelationship.” They were debated for 11 minutes in the House of Commons. It does not require expertise to see the problem here.
Another worrying trend in this respect is the growing use of powers theoretically reserved for urgent business only, to make delegated legislation, even where it is not clear that there is genuine urgency. This can have severe effects on opportunities for scrutiny and, as a result, the quality of our laws. For instance, the government repeatedly used urgency powers to make secondary legislation relating to Brexit while parliament was suspended in the autumn of 2019. If the planned 31st October exit day had occurred, that legislation would have only been debated after the UK had left the European Union. There was a lack of any clear, credible reasons for the use of urgent procedures in those circumstances.
It is also a fundamental feature of the rule of law that laws should be relatively stable. We do not need to look far beyond our current predicament to see examples of why, in certain circumstances, laws may need to be changed quickly. But, in the general course of things, people will find it difficult to know what the law is if it changes too quickly, too often. It is often the case that delegated legislation changes quickly to fix mistakes in laws already made. Although this is necessary if the initial procedures are flawed, these fixes should never be needed in the first place and makes things even harder to follow. The laws passed to rectify mistakes are referred to as “wash-up” instruments. Up to actual exit day on 31st January 2020 there had been 97 separate pieces of delegated legislation passed to try to fix mistakes in instruments passed shortly before.
The growing case for reform of our delegated legislation system is becoming overwhelming, particularly given how Brexit has shown the system to be creaking under pressure. The management of Brexit regulations, however, is just one symptom of weak machinery, the flaws of which have been on full display again with the 295 separate regulations passed due to Covid-19. Creating a process capable of upholding the rule of law in a modern state, that often has to pass lots of legislation quickly, should be at the forefront of the constitutional reform agenda in the coming years.
Alexandra Sinclair and Joe Tomlinson are co-authors of “Plus ça change? Brexit and the flaws of the delegated legislation system.” Their article features in Prospect’s new legal report in partnership with the Bingham Centre for the Rule of Law, Jones Day and the City of London Corporation
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