Whose sovereignty?

Posted on: July 22nd, 2016

There was a lot of talk in the referendum campaign from the Brexit side about taking back control and re-establishing sovereignty to the UK. But there is a real danger that after Brexit, Parliament could become little more than a rubber stamp for a vast array of secondary legislation initiated by the Government to replace EU law with UK law.

In the campaign nothing was said about whether it was the sovereignty of the Government or of Parliament that was to be reclaimed. The debate on this is just starting: the question of whether the Government can initiate the Article 50 process to start the withdrawal clock without the approval of Parliament is the first to emerge. This article does not address that question instead it asks how the shifting balance of power between Parliament and the Executive may affect the way in which the detailed legislative changes are carried through.

This latter issue was addressed in a lecture by the Lord Chief Justice of England, Lord Judge, in April. In his lecture “Ceding Power to the Executive: Resurrecting Henry VIII”[1] he drew attention to the growing use of what are -erroneously- known as Henry VIII clauses in government legislation. The term refers to powers that give ministers the ability to change the law by delegated legislation, also known as statutory instruments (SI’s). Delegated legislation is certainly not novel, nor is it uncommon. Lord Judge quotes 170,000 such instruments being presented since 1950 Including 23,000 since 1997 and the rate is still growing. These instruments are subject to various forms of Parliamentary control. They may need specific endorsement – affirmative resolutions- or may be voted against – negative resolutions depending what is provided for in the authorising legislation. Some require no approval at all.

The majority of those instruments will have been confined to their traditional and uncontroversial purpose of elaborating the detail of legislation or amending variable factors such as interest rates, uprating charges or levels of penalties. Others, however, will have been concerned with transcribing EU directives, which have more significant policy implications. Despite assurances given when The European Communities Act was debated in Parliament in 1972, much European legislation is given effect to in the UK by statutory instruments under that act rather than by primary legislation. The principal difference between the two approaches is of course that while a Bill can be amended by parliament an SI cannot. In general Parliament can accept it or reject it but cannot directly change it. Rejection is a blunt instrument and has rarely been used: seventeen times since 1950 or 0.01% of all SI’s presented. The House of Commons has not rejected an SI since 1979.

It maybe argued that implementing EU directives in this way is merely efficient since there is no option but to adopt them. This is a fallacy: most EU directives allow for implementation to be adapted to suit national needs and indeed it is one of the most common criticisms that the UK’s approach goes further than necessary and that our implementation is “gold plated”.  The SI approach makes it difficult to examine these concerns.

Lord Judge’s concern, however, goes much further.  He points to legislation in the last ten years [2] which gives the Executive the ability to change and repeal both existing and future primary legislation, even constitutional legislation. He points out these were powers that the Parliament of 1539 denied to Henry VIII.

We do not know whether Lord Judge, speaking before the EU referendum, had any particular insight into the outcome, but his concerns could not be more relevant as we confront the daunting task of extricating the UK from the Union we have been a member of for 43 years. How are we going to deal with the mass of legislative change that potentially could be needed? Clearly all of the EU inspired law cannot be simply swept away, that would leave gaping holes in so many parts of our legal system. A more rational approach would be to legislate to keep everything unchanged at the point of exit – a giant saving provision- and to amend specific laws and regulations in the normal way following a proper policy making process. That may turn out to be too glacially slow for the political process to tolerate.  A more likely approach would be for a general saving provision for most things but a raft of changes in those areas judged to be most politically sensitive, like labour mobility.

The risk is that the Government will seek to mirror the European Communities Act 1972 in providing broad order making powers to repeal or amend “European” provisions, even though the activity is not analogous. How an existing provision is replaced or amended is quite different from transcribing provisions developed elsewhere.

The BGI has long argued for “good government”: policy and legislation developed with clear objectives, supported by evidence and analysis of its impacts and after consultation with those directly affected. Seeking to replace a significant body of law in a hurry carries risks that the replacements will be poorly thought through and with unforeseen side effects. While it is unlikely that Parliament could manage the necessary changes by primary legislation alone, the risks are intensified if the processes used rely on Statutory Instruments which Parliament cannot amend.

As Lord Judge has pointed out, the situation with delegated legislation was already tipping the balance of power from Parliament to the Executive.  Surely it is time for Parliament to reassert its sovereignty and insist that new processes are developed for handling EU exit at least. Parliamentary Committees, either the existing specialist departmental select committees or special “Brexit committees”, could be tasked with taking evidence from both ministers and those affected by proposed changes and empowered to propose specific amendments for ministers to consider or, if necessary, take to a vote on the floor of the House.

This goes further than the existing “super affirmative” order provisions by shifting the decision over whether to propose an amendment to a draft order, from the minister to parliament. But if we don’t want Henry VIII again that is no bad thing.

[1] https://www.kcl.ac.uk/law/newsevents/newsrecords/2015-16/Ceding-Power-to-the-Executive—Lord-Judge—130416.pdf

[2] Constitutional Reform and Governance Act 2010 and The Childcare Act 2016