Parliamentary scrutiny of our legislation is being lost to misused executive power
Andrew Phillips, a founder of LAG and a former member of the House of Lords, often remarks on his concerns about the amount of legislation that is produced by parliament. Lord Phillips questions how much of what is added to the statute books each year can be effectively scrutinised given the time constraints on our legislators. He is not alone. The former Lord Chief Justice of England and Wales, Lord Judge, used a lecture last month1A judge’s view on the rule of law, 3 May 2017.
to raise his concerns over the diminishing level of scrutiny that legislation is subject to and to argue that this undermines parliament’s control of the executive.
Speaking at the annual Bingham Lecture, Lord Judge, who now sits in the House of Lords, observed that parliament produces around 3,000 pages of primary legislation a year, along with 12–13,000 pages of secondary legislation. Disturbingly, he expressed doubts about how much of this was even ‘read, just read’ by parliamentarians, ‘let alone scrutinised’. He argued that the phrase ‘rule of law’ in its modern meaning was first used in a Petition of Grievances to James I. The petition was drafted by the House of Commons in response to the king’s misuse of the royal prerogative. Lord Judge sees a direct parallel between this and the danger of misuse of executive power by governments today.
Lord Judge’s comments on the legislative process are very timely for, as he said, parliament is about to be hit with a ‘legislative tsunami’ due to Brexit. In his speech, he identified and criticised a number of trends in parliament’s law-making, for example, the use by the government of what are referred to as ‘Christmas tree’ bills. These bills contain seemingly related provisions that, on closer examination, are nothing to do with the title of the bill and have only been bundled together as an attempt to circumvent proper parliamentary scrutiny.
Another target of the former judge’s criticisms was the increasing use of what have been dubbed ‘skeleton bills’. These give a sketchy outline of laws that are subsequently filled out by delegated legislation not subject to the same level of parliamentary scrutiny as the primary legislation. To illustrate the point, Lord Judge referred to the Education and Adoption Bill, which introduced the term ‘coasting school’, but was silent on what it meant (the bill received royal assent in 2016). He argued that while it is constitutionally permissible to put the definition of the term into regulations, such an important issue of principle and policy should have been included in the main statute.
The UK is in danger of casting off the supranational sovereignty of the EU for law-making by an executive with little or no accountability.
In what must have been a rather cathartic speech for the judge-turned-legislator, Lord Judge took a sideswipe at bills that were ‘not much more than intended political propaganda’, but gobbled up parliamentary time to the detriment of ‘real legislation’. He used the Wales Act 2017 as an example of this, and to illustrate a central point of his speech, which was the tendency of the executive to take what are referred to as Henry VIII powers to override statute.
The Wales Act stripped of its grand statements is of little substance, he argued, and boils down to a power grab by the executive. Part 5 of the Act gives the secretary of state the power to ‘amend, repeal, revoke or otherwise modify’ primary and secondary legislation made both by parliament and the National Assembly for Wales. Lord Judge described this provision as constitutionally ‘extraordinary’, but an all-too-frequent occurrence, with such clauses featuring 41 times in 14 bills in the last session of parliament.
According to Lord Judge, in 1932 the Donoughmore Committee on the Powers of Ministers recommended that the use of Henry VIII powers ‘should be abandoned in all but the most exceptional cases’. The committee also concluded that there were not effective procedures in place to scrutinise delegated legislation. Lord Judge fears though, that the pressure to unravel over 40 years’ worth of European laws will ‘irremediably [cement] lawmaking by un-scrutinised legislation into our constitutional arrangements’.
The sovereignty of parliament over the executive is a constitutional principle cherished across the political spectrum. Such are the inadequacies of our legislative processes, that the UK is in danger of casting off, for better or worse (worse, we’d argue), the supranational sovereignty of the EU for law-making by an executive with little or no accountability.
As Lord Judge pointed out, concerns over the lack of scrutiny of legislation and attempts by the executive to take power away from parliament are not new. He argued that a Parliamentary Committee of Enquiry is needed to examine these issues. Legal Action would add to this that if, as seems more than likely, Brexit is the new political reality, a constitutional settlement is needed that reasserts the pre-eminence of parliament and the elected House of Commons as the sovereign law-making body.