The legislative challenges posed by Brexit and the unusual circumstances of the pandemic have led to a significant increase in the use of secondary legislation. The former Head of the Government Legal Department, Jonathan Jones, argues that mass use of statutory instruments is problematic, and that there should be a fundamental rethink of how and when they are used, debated and approved. He calls for a new Statutory Instruments Act to enable this ‘reset’.

Brexit and the pandemic have led to an increase in secondary legislation

Both Brexit and the COVID-19 pandemic have seen the government making increased use of secondary (or subordinate) legislation. This is where ministers make law in the form of (usually) regulations contained in a statutory instrument (SI), under powers conferred by parliament in an earlier Act. It’s ‘secondary legislation’ by distinction with ‘primary legislation’ – Acts of Parliament.

It is easy to see why governments like secondary legislation. The process of making regulations is normally much quicker and easier for ministers than trying to pass a new Act each time.

Well over 600 SIs were made to give effect to Brexit – mainly to make sure that pre-existing EU law ‘worked’ in the UK once we had left the EU. Some of the changes were technical and minor, though others were much more substantial. In addition, ministers have made over 500 SIs to legislate in response to the pandemic – including imposing lockdowns, travel restrictions and the closure of businesses.

There is nothing inherently unconstitutional about this. Secondary legislation is an established part of our system of law-making. It is open to our sovereign parliament to confer whatever powers it wants on ministers, subject to whatever conditions, limitations and procedures it wishes to impose. And ministers are entitled to exercise those powers, subject to review by the courts.

Using regulations to prescribe technical or procedural detail, pursuant to policies and structures set out in Acts of Parliament, is normally unexceptionable and indeed sensible: it avoids parliament being clogged up with unnecessary mundane business. On the other hand, some of the powers conferred on ministers are very wide and go well beyond merely technical or procedural matters. COVID-19 regulations have been used to impose the most intrusive restrictions on all aspects of national life.

While exceptional circumstances may have justified exceptional measures, this recent use of secondary legislation raises important questions about the quality of the law, its intelligibility, clarity, accessibility and democratic legitimacy.

The main problems have been ones of timing and lack of opportunity for proper consideration by parliament.

Legislating in haste leads to bad laws

Repeatedly we have seen instruments made only a couple of days, or sometimes even hours, before they come into force. This may have been unavoidable at the height of the emergency. But it is still happening. It does not lead to good law-making. Policy developed at speed and finalised at the last minute, with minimal consultation even inside government, let alone outside, will tend to be worse policy – less well thought-through, more inconsistent, more prone to unintended gaps and anomalies – and hence more liable to require amendment in short order.

This approach also leads to poor drafting. I used to draft secondary legislation myself and my sympathies are with the hard-working drafters. But it is inevitable that instruments drafted in a hurry, with minimal time for checking, will be liable to include avoidable mistakes. It seems clear (see this survey by the Hansard Society) that the demands of legislating for the pandemic have resulted in an increased rate of ‘omissions, technical mistakes and drafting shortcomings’ including examples of ministers signing the wrong version of an instrument. Even where technically correct, legislation drafted in a rush can be difficult to follow: lack of time may mean the drafter having to reach for the least elegant solution – for example bolting chunks of new text on to existing legislation – whereas with additional time a more streamlined and user-friendly solution might have been possible.

SIs suffer from a lack of parliamentary scrutiny

Lack of parliamentary scrutiny is a connected problem. Even in ordinary times such scrutiny is limited. Secondary legislation cannot be amended by parliament: the most it can do is debate an instrument (this is a requirement for a minority of instruments – those subject to the ‘affirmative’ procedure – but very rarely happens for ‘negative’ instruments, which are the majority) and ultimately reject it outright (which is rarer still). On the other hand, valuable scrutiny work is done in the specialist parliamentary committees which – where there is time – can lead to corrections or improvements being made to SIs before they are made. The ‘21 day rule’ requires that negative instruments must normally be laid before parliament at least 21 days before they come into force. This at least gives parliament and the public the opportunity to consider the legislation, and where relevant prepare to comply with it, a decent period before it comes into force. And even the possibility of a debate in which ministers might be required to justify the content of an instrument, even if only exceptionally, is an incentive towards better, more transparent law-making which should not lightly be discarded.

But the government’s approach to legislating for Brexit and COVID-19 has seen this limited level of parliamentary involvement reduced yet further, in many instances to zero. Many Brexit and COVID-19 SIs received minimal or no parliamentary scrutiny. Of the 500-plus COVID-19 SIs, only about 30 were debated in parliament before coming into force. Of those subject to the negative procedure, 54.7% breached the 21 day rule. It follows that MPs and peers will have had little or no involvement in the creation of some of the most important laws affecting the country.

Hastily passed laws create problems of compliance and comprehension

Last minute law-making also means that legislation is not available to those affected by it – businesses, schools, individual members of their public, or their lawyers – in time for them to understand it, prepare for it and comply with it. The same goes for the police and others responsible for enforcing the law. As the House of Commons Justice Committee has highlighted in its recent report on COVID-19 and the criminal law, this has contributed to confusion about what the law says and inconsistency in its enforcement, as well as leading to failed prosecutions.

Part of the problem has been what the Committee calls a ‘blurring [of] the line between government guidance and the law’, which it believes:

‘… has potentially damaging long-term consequences, including for the rule of law. In a free society that respects the rule of law, only legislation can criminalise conduct, and it should be open to a person to decide whether to follow government guidance. The Government has a responsibility to ensure that the public and the police have a clear understanding of the distinction between guidance and the law’.

In summary:

• Rushed, poorly scrutinised legislation is more likely to be bad law, both in policy and drafting terms.
• If law is published late, is difficult to follow or is otherwise inaccessible, this presents difficulties for those who have to comply with it, as well as those whose job it is to enforce it.
• Legislation produced in this way is likely to lack democratic legitimacy. The politicians who represent us will have little or no say or stake in it.
• All this, together with confusion between legislation and guidance, is damaging to public confidence in the law.

The risk is that, because this approach to law-making is convenient to the government, it will become the norm. Bad habits will become ingrained.

SIs and ‘retained EU law’

The government’s plans to review ‘retained EU law’ do not give confidence that it has learned the lessons. In a recent ministerial statement to parliament, Lord (David) Frost talked about reviewing the body of EU law which was brought on to the UK statute book, to see what changes should be made now the UK has left the EU. That is legitimate and to be expected. But he also said this:

‘We will consider all the options for taking this forward, and in particular look at developing a tailored mechanism for accelerating the repeal or amendment of retained EU law in a way that reflects the fact that laws agreed elsewhere have intrinsically less democratic legitimacy than laws initiated by the Government of this country’.

The concern is that such a ‘tailored’ or ‘accelerated’ mechanism will once again mean legislating at speed, with limited or no opportunity for parliamentary scrutiny, in a way which ironically carries less democratic legitimacy than the system of EU law-making it is replacing.

We need a ‘reset’ of the rules for secondary legislation and a new Statutory Instruments Act

I suggest there is a strong case for a reset of the use of secondary legislation. It could include the following:

• Tighter scrutiny of the scope of powers, the purposes for which they are granted, and the parliamentary procedures which apply to their exercise. While there is no constitutional bright line between appropriate or inappropriate use of secondary legislation, it might be possible to articulate some high-level tests or assumptions: for example that secondary legislation cannot be used to set ‘policies or principles’ but only for ‘administrative or regulatory’ purposes.
• In addition it might be possible to codify the types of parliamentary procedure which should apply to particular kinds of powers: for example to provide that instruments which amend primary legislation (under so-called ‘Henry VIII powers’), or which create or extend criminal offences, are subject to enhanced scrutiny procedures, requiring parliamentary debates and votes.
• There is a case for going further, and making some categories of SI (for example those imposing restrictions on individual rights and freedoms, or setting penalties over a certain level) amendable: in other words MPs and peers would not only have the opportunity to debate an instrument, they could propose changes to it.
• There should be an assumption that making secondary legislation with no opportunity for prior parliamentary consideration is absolutely exceptional, defined as tightly as possible, with ministers having to justify any such exceptions. There should be a general rule that instruments must be published for a minimum period before they come into force. There are good reasons for the 21 day rule: it should be reasserted and if anything strengthened.
• There should be clearer protocols for the publication and accessibility of secondary legislation, especially when (exceptionally) it is necessary for instruments to come into force very quickly. Put simply, it should be easy to find an authoritative version of any SI as soon as it has been made. Regulations are published on the website www.legislation.gov.uk, but this takes time to catch up. We should never be in a position where it is near impossible to find the text of the law hours before it is due to come into force.
• When an SI amends previous legislation, it should be the norm to publish simultaneously a consolidated version of the law as amended. This would greatly aid transparency and comprehensibility of the law, particularly where the amendments made are very complex, or (again) are due to come into force at short notice.

These suggestions can be read alongside the recent recommendations of the Justice Committee. For example that:

• explanatory notes to SIs should be more explicit about the reasons for the creation of new criminal offences and the level of penalty applied; and
• government should review how public health measures are communicated to the public, so that people are clear about what is law and what is guidance (indeed that could go beyond health measures).

These changes would not involve constitutional change, but they would be a way of improving balance, democratic legitimacy, transparency and quality of law-making within our existing constitution. Some of these changes should be embodied in a new Statutory Instruments Act. Short of legislation, some improvements could be made through revised guidance on good practice, agreed between government and the parliamentary scrutiny committees.

I realise the government may not see this as a priority, or even as being in its own interests. But in the absence of such a reset, my fear is that the government – maybe any government – will persist in bad habits: in extracting from parliament ever wider powers, minimising scrutiny of their exercise, legislating essentially behind closed doors and at the last minute, leading to poorer, less transparent, less accessible, less accountable law-making. That would be very bad for democracy and the rule of law.

This is the latest in a continuing series of blogs in response to the constitutional challenges posed by the coronavirus. To see past blogs in the series, click here. To be notified of future blogs as they go live, sign up for updates in the left sidebar.

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About the author

Sir Jonathan Jones QC (Hon) is a Senior Consultant at Linklaters and former Head of the Government Legal Department.