Who makes UK law?

• Today, most UK laws are made by government ministers with little parliamentary involvement, risking potentially serious consequences.
• Tighter control over the use of delegated legislation is now required. A better system of scrutiny needs to be introduced. A reassertion of the boundary line between primary and delegated legislation is also called for.

Who makes UK law? Most people’s instinctive answer is likely to be that Parliament does. In recent years, Brexit has suffused our public debate with talk of restoring the supremacy of the Westminster Parliament, unfettered by EU laws made elsewhere. Muddying the waters a little, some have criticised ‘judicial overreach’ on the basis that, in our parliamentary democracy, responsibility for determining and changing our laws (as opposed to interpreting and applying them) should sit with Parliament, not unelected judges. Again, the central idea here is that legislative power rightly rests with Parliament.

A more nuanced response might, however, acknowledge that in fact most UK laws are made by government ministers with little parliamentary involvement.

This is due to the increasing normalisation of ‘framework’ or ‘skeleton’ bills, ie Acts of Parliament that express general policy principles but leave the fine print to be filled in later by government ministers under powers that enable them to make delegated legislation. So-called ‘Henry VIII’ powers have also proliferated in primary legislation. These permit ministers to use delegated legislation to amend Acts of Parliament. Brexit and COVID-19 both understandably required unprecedented legislative responses, but those responses only accelerated an existing trend. As a result, delegated legislation is now arguably the UK’s dominant form of law-making.

There is nothing inherently wrong with such a shift, which offers some practical advantages. The UK cannot in fact do without delegated legislation, because Parliament cannot realistically satisfy the demand for new rules on its own. Nor would working on uncontroversial administrative, technical or frequently updated regulations be a good use of scarce parliamentary time. Upheavals and emergencies undoubtedly demand unconventional responses, rapid action, and firm control. Naturally these conditions favour nimble ministerial action over cumbersome parliamentary procedure.

It may be, however, that the current, relatively unsupervised, approach to delegated legislation is operating to undermine the constitutional balance between executive and legislature, risking potentially serious consequences. In its working paper ‘Proposals for a New System for Delegated Legislation’, the Hansard Society makes this case and concludes that: ‘…Parliament should not readily delegate its responsibilities to Ministers, unless it is willing to put in place a system of scrutiny and accountability that guarantees democratic legitimacy’.

Is reform needed?

Concerns about UK delegated legislation are hardly new. In an April 2016 lecture, before the Brexit vote, Lord Judge warned that our overreliance on ministerial law-making could corrode Parliament’s ability to protect against overmighty governments. Constitutional concerns like this were amplified late in the pandemic by reports from the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee, punchily entitled ‘Democracy Denied’ and ‘Government by Diktat’. With the sweeping new powers to make delegated legislation currently moving through parliament in the Retained EU Law (Revocation and Reform) Bill, we may be approaching an inflection point.

A consensus does seem to be forming that the current system cannot continue, for a number of different reasons. For example, there is now some cross-party recognition that formerly ‘unorthodox’ legislative practices have become routine. Whereas ministers traditionally adhered to warnings from the Office of the Parliamentary Counsel and impartial civil servants about the proper division between, and contents of, primary and delegated legislation, today’s political leaders are less deferential. The volume of delegated legislation is also now such that its effects are felt by people in most areas of social and economic life. Finally, it appears to be widely acknowledged that the existing system of scrutiny—with few incentives encouraging participation and no scope to amend rather than reject delegated legislation—is hamstrung and ineffective. Remarkably, out of thousands of statutory instruments made, only 16 have been rejected by Parliament since 1950, and none by the House of Commons since 1979. Oversight that is exercised in such a limited manner encourages poorly conceived and poorly drafted legislation that frequently requires future correction or generates legal uncertainty and litigation.

The Hansard Society’s working paper engages with these problems holistically. Among a trove of proposals is one seeking to reassert the boundary line between primary and delegated legislation by imposing clear political costs (if not legally binding rules) to control the proper uses of delegated legislation. A ‘concordat’ would spell out clearly the provisions that conventionally necessitate an Act of Parliament (eg those creating criminal offences or taxes, those with constitutional impacts and those with the effect of unsettling established rights). Another key proposal is a comprehensive streamlining of the process for making and scrutinising delegated legislation, tailored according to its sensitivity. Finally, the paper proposes an amendment procedure aimed at incentivising politicians to participate in overseeing the use of delegated legislation.

Is reform now realistic?

For as long as politicians are not willing to grapple with changing a legislative process involving limited constitutional guardrails or opportunities for oversight, scrutiny, and accountability, the increasingly untenable status quo described above is likely to endure.

We should all hope, however, that politicians are coming to realise that some retrenchment in, and tighter control over, the use of delegated legislation is now required. Unless they seriously tackle the problem, our elected leaders increasingly risk blowback and the erosion of their democratic legitimacy in the eyes of those affected by government-issued rules and regulations. How far the Hansard Society’s eventual recommendations will be the prescription needed to cure the problems with delegated legislation remains to be seen, but there is much to look forward to in its forthcoming final report.

This article was first published by the New Law Journal and can be found on its website: www.newlawjournal.co.uk

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