Reliance on secondary legislation has resulted in significant problems: it is time to rethink how such laws are created

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.

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The Fixed-term Parliaments Act did not cause the Brexit impasse

Next week MPs debate the government’s bill to repeal the Fixed-term Parliaments Act 2011. One argument frequently deployed for scrapping the Act is that it generated gridlock over Brexit. But, Meg Russell argues, no clear counterfactual to support this claim has ever been presented. In fact, when considering the possible scenarios, it seems likely that the situation would have been made worse, not better, had the Prime Minister retained an untrammelled prerogative power to dissolve parliament in 2017–19.

Next week MPs debate the remaining stages of the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA). It proposes to reinstate the pre-FTPA position, whereby the Prime Minister would effectively control general election timing using prerogative power. A key argument deployed by those seeking repeal of the FTPA is that it helped to cause the Brexit deadlock of 2019: that the FTPA, as the Conservative manifesto put it, ‘led to paralysis at a time the country needed decisive action’. But to what extent is this really true?

While suggestions that the FTPA created the Brexit deadlock are commonplace, most experts who contributed to the three parliamentary committees that have considered FTPA repeal (the Commons Public Administration and Constitutional Affairs Committee, Lords Constitution Committee and Joint Committee on the Fixed-term Parliaments Act) argued that the deadlock resulted from other factors. Most obvious were the post-2017 combination of a minority government, the need to deliver on a contested referendum result, and deep divisions within the governing party. These problems were clearly serious, and it is very far from clear that the FTPA could have resolved them.

A careful reading of the evidence presented to the three parliamentary committees, and of the Commons second reading debate on the bill, finds that most claims against the FTPA over Brexit are distinctly vague. No clear counterfactual is offered. This particularly applies to events during Theresa May’s premiership, when the most intractable problems arose. The situation did change in the autumn of 2019 under Boris Johnson (as discussed below), but the FTPA’s targeting as a causal factor dates back far earlier than this. Likewise, during interviews with a series of senior figures for a current book project on parliament and the Brexit process, I have asked several critics of the FTPA how, if Theresa May had been able to trigger an early general election without parliament’s consent, things would have turned out differently. I have yet to receive a convincing reply.

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The public policy challenges facing Northern Ireland

Following the report of its Working Group on Unification Referendums on the Island of Ireland, the Unit will in the coming weeks publish a discussion paper on the wider political options for Northern Ireland. In the first part of this blog, Alan Whysall, the author of the paper, sets it in the current political context, and discusses the public policy challenges facing Northern Ireland. The second part, which will be published later today, considers longer term destinies, and what can be done to encourage more realistic debate, and ultimately constructive politics, in Northern Ireland.

Introduction

Politics will resume in Northern Ireland after the summer in deep conflict. But much of the political debate is totemic, neglecting the realities of public policy in Northern Ireland now.

The unreality of the debate reflects the unwinding of constructive politics, such as was seen in the better days following the Good Friday/Belfast Agreement of 1998.  

And the increasing talk of broader constitutional destinies is cast in vague and general terms, reminiscent of the Brexit debate; on one side, it often obscures serious issues that constitutional change would raise; on the other, it takes little account of the changing nature of Northern Ireland society.

The discussion paper

The discussion paper will aim, in a neutral spirit, to point up pressing immediate issues that need to be analysed and acted on; and key aspects of the debate about potential destinies.

And it will ask how a spirit of constructive political endeavour can be restored.

Is it practical to think of a renewed Agreement?

The paper will offer some tentative answers to the questions it raises, but it really does need to spark a discussion. Political tensions may once again reach breaking point before very long: and answers to the questions may be needed.

Finally, the paper asks who is to drive the effort towards changed debate and politics. The British and Irish governments have often sought to keep the Northern Ireland political system on the rails, and to impart new impetus. But at present their differences may mean they are challenged in doing so.

So the paper also asks whether others in Northern Ireland can help.

Dealing with the here and now

The Northern Ireland Protocol

The Northern Ireland Protocol looms over Northern Ireland politics. Brexit has been profoundly disruptive. It was the first major change in the arrangements established after the Good Friday Agreement that lacked the cross-community support by which the Agreement was reached – indeed Northern Ireland voted Remain. Hard Brexit inevitably meant more borders somewhere in or around Ireland. The Protocol is the outworking.

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Post-truth – and post-conservative? How Boris Johnson’s Conservative Party poses a threat to the quality of our democracy

The Johnson government, and the Prime Minister himself, have been much criticised for their propensity for breaking rules, laws and conventions. Tim Bale argues that the government seems bent on freeing itself from the constraints that we used to take for granted, and has embraced populism in a reckless manner. He calls on ministers to reconsider their attitude to the rules of the constitutional system before it is too late.

I’m no expert on the constitution, the courts or the more arcane aspects of parliamentary procedure. But I can, I suppose, claim to know a bit about the Conservative Party. And I’m growing increasingly concerned.

The party has always been protean – shifting its shape, changing its colours like a chameleon to best suit the conditions in which it finds itself. But there have always been limits.

Margaret Thatcher may have been a disruptor, particularly when it came to undoing the post-war settlement to which her predecessors reluctantly agreed. Yet one always felt she had a basic respect for the conventions of representative democracy and the rule of law, even on those occasions where she and her governments pushed against them.

And the same went for her successors as Conservative premiers, John Major, David Cameron and Theresa May. But Boris Johnson? I’m not so sure.

Wherever you look now, you see a government seemingly bent on freeing itself from the constraints that we used to take for granted – and that, in some ways, our uncodified constitution and parliamentary conventions left us little choice but to take for granted.

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