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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Regulating the use of COVID passports in the UK: the need for primary legislation

Talk of ‘COVID passports’ as a means of proving a person’s vaccination status has increased in recent weeks. Ronan Cormacain argues that rule of law concerns necessitate that COVID passports must be created and regulated by primary legislation, which must be given time for proper parliamentary scrutiny. They should not be brought about by secondary legislation, as has been the case with a significant amount of pandemic-related legislation.

The so-called COVID passport is a way of ‘proving’ a person’s COVID status. This blogpost makes three arguments. Firstly, that the use of COVID passports ought to be regulated, secondly that that regulation ought to be by way of legislation, and thirdly that that legislation needs to be an Act of Parliament.

There are many forms such a passport could take: digital or non-digital, domestic only or international, relating to the presence of COVID antibodies or vaccination status, etc. Furthermore, there are many important questions around the content of such a law: the justification of requiring a passport, scope, international recognition, protections, necessity and proportionality, time limits on regulation, etc. This post does not address any of these questions, focusing not on the detail of any law regulating them, instead simply arguing that there should be a law regulating the matter in the UK.

Autonomous moral actors in an unregulated market, or heteronomous rules imposed upon a regulated market

John Locke’s almost mythical conception of a pre-Commonwealth era was of autonomous individuals perfectly free to make their own moral choices. There were no externally imposed rules, and we were all individuals with complete power to determine our own actions. Or as Locke put it: ‘a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other [person]’.

At the time of writing, COVID passports, or more specifically, the right to treat a person in a particular way depending upon whether or not they have a COVID passport, occupies a near Lockean regulation-free space. There is no rule that a publican may refuse entry to a person without a passport, but nor is there a law that specifically prohibits him from doing so. There is no rule that a health worker must only be employed if they have a passport, but nor is there a specific protection for those who don’t have one. Aside from the regulation of travellers to England, Scotland, Wales and Northern Ireland (who must be in possession of a negative COVID test result), this is a law-free zone.

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Sir John Laws and The Constitutional Balance

The Constitutional Balance, a new work by the former judge John Laws, was published posthumously in January. Here, David Feldman discusses the key themes of the book, and pays tribute to the author, a long-serving judge, who served as a Lord Justice of Appeal and was one of the most well-respected public law judges of the last 50 years.

The late Sir John Laws stood out as one of the greatest English public law judges of the last 50 years. Throughout his distinguished and creative career as Treasury Devil – First Junior Treasury Counsel (Common Law), responsible for advising and representing the government in a large range of public law matters – and judge, he was uniquely willing to argue publicly for and apply in his judgments a systematic philosophy of the liberal, democratic state and of the respective roles within it of the people, their representatives, the government and the judiciary. After retiring from the Bench he spent the 2016-17 academic year as A. L. Goodhart Visiting Professor of Legal Science at Cambridge. There he gave a course of 16 lectures, primarily for final-year undergraduates, entitled ‘Judicial Review and the Constitution’. In them he distilled his latest thinking on matters to which, as writer and judge, he had made distinctive contributions to our public law. These included parliamentary sovereignty and the interpretation of statutes, the importance of the common law in constitutional development, the place of human rights in the constitution, the role of judicial review, how government and judiciary should understand and give appropriate respect to each other’s different, equally legitimate roles in the governance of the country, and the proper relationship between religion and the law.

Sir John used his lectures as the basis for a book, The Constitutional Balance. Unfortunately his zest for life was severely dented by the death in 2017 of Sophie, his wife, and his physical health deteriorated. Nevertheless, greatly helped by Nigel Pleming QC, his long-standing colleague and friend, Sir John finished the text before he, too, died in 2020.

At the heart of the book lies a connection between his view of the constitution and his understanding of the human condition. Ideally, he thought, people are rational, enjoy free will (and so are responsible for their actions), are social, communing with others of their kind (pages 6-7) and have to find ways to coexist fairly with them. These characteristics demand freedom of thought and expression, and rigorous rejection of ideology (‘a preconception or preconceptions, an assumption or assumptions, not tested by reason, by argument, by practice or by results; an a priori belief, given or imposed in advance, assumed to be true’: page 2) that forecloses debate about the good and the bad, and reliance on reason and fair process to conduct and resolve disagreement (pages. 2-6 and 134-138). Sir John saw reason, fairness and a presumption in favour of liberty as key values of the common law, that unique system whereby principles and precedents are continuously tested through rigorous argument and gradually developed over centuries, and of a democratic constitution respecting the rule of law.

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Will the Lords block the UK Internal Market Bill?

Parliament will this week begin debating and scrutinising the UK Internal Market Bill, which the Northern Ireland Secretary has already acknowledged will, if passed in its current form, place the UK in breach of international law. When the bill reaches the upper chamber, what sort of treatment will it receive? Might the Lords block it? Unit Director and Lords expert Meg Russell offers her view.

Widespread shock greeted this week’s news that Boris Johnson hopes to set aside elements of the Withdrawal Agreement related to Northern Ireland – particularly when Northern Ireland Secretary Brandon Lewis admitted to the House of Commons that the UK Internal Market Bill drafted to achieve this ‘does break international law’. Former Conservative Prime Ministers Theresa May and John Major, and senior government backbenchers, loudly protested. Former Conservative Solicitor General Lord (Edward) Garnier expressed surprise that the government’s law officers – those ministers expressly charged with protecting the rule of law – hadn’t resigned.

After an emergency meeting, the European Commission vice-president demanded that the UK withdraw the plans. The Irish Taoiseach described them as ‘extremely divisive – and dangerous’, while the US House Speaker Nancy Pelosi warned that breaching international law would mean ‘absolutely no chance of a US-UK trade agreement’.

There are clear questions over whether such a controversial bill – whose Commons second reading is on Monday – can secure parliamentary approval. Specifically will it, as some suggest, be blocked by the House of Lords? A prior question is whether these provisions will make it through the House of Commons. Despite Johnson’s majority, Conservative dissent is unusually intense. This is unsurprising since, as many have recently quoted, that most iconic of Conservative prime ministers Margaret Thatcher consistently emphasised respect for the rule of law as a core Conservative value.

There is actually a prior question even to this, regarding whether the Commons will actually be asked to approve the offending clauses. In parliament the ‘law of anticipated reactions’ generally applies: sensible governments facing a likely Commons defeat will retreat on legislation if they can. When Charles Walker, vice-chair of the backbench 1922 Committee, was asked whether Conservative MPs would vote against the bill (21:18), he responded ‘I doubt we are to get to the stage where we are asked’. This implied that the Prime Minister would hear the drumbeats, and back down.

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