Many who voted for Brexit did so to ‘Take Back Control’ from the EU, but who will legislative control pass to after Exit Day and what are the possible consequences for our constitution and for all of us? In the second post in our Public Law team’s series, Nick Wrightson outlines why secondary legislation is necessary in modern Britain. See our Public Law Blog for more.

In The Law of the Constitution (1885) A.V. Dicey called the principle that Parliament can make or unmake any law, and no authority can override an Act of Parliament, the “keystone” of the British constitution. This powerful doctrine, that the ultimate “validation and legitimacy” of laws comes “through consent by the legislature” (Paul Craig) remains strong today. Because of this ‘parliamentary sovereignty’ the courts will generally refuse to rule on the lawfulness of an Act of Parliament. Even when they interpret statutes, the courts frame that exercise in terms of identifying and giving proper effect to what the legislature intended. As British society has evolved, however, its appetite for rules has greatly increased. The high ideal of democratically legitimised rulemaking by Act of Parliament has therefore collided with the basic reality that MPs and peers have limited resources and their legislative production line is incapable of keeping pace with burgeoning demand.

That is not a recent development. The system has been adapting to it for some time. Perhaps the main legislative shift has been in the essence of the rules being made. In broad terms ‘rule legislation’ once dominated. Legislators tended to lay down specific laws requiring specific behaviour. The rules they made were addressed directly to the public and could be followed immediately (e.g. do not operate a coal fire power station). More recently, ‘goal legislation’ has gained prominence. It tends to directly prescribe an objective and leave a degree of discretion to the recipient over how to achieve it. If ‘rule legislation’ tends to be self-contained, ‘goal legislation’ depends on the recipient to develop and implement rules themselves that will deliver the prescribed goal (e.g. decarbonise the economy). A purist believer that laws should be clear and intelligible instructions to guide the behaviour of the public may consider this more abstract approach a retrograde step, but it partly reflects a change in audience. Whereas ‘rule legislation’ is aimed at private individuals, ‘goal legislation’ often addresses a minister or administrative agency of the state (e.g. [t]he Secretary of State may for the purpose of encouraging low carbon electricity generation make regulations...”, see section 6(1) of the Energy Act 2013) That is why much modern legislation can be “usefully viewed as a set of internal government instructions” telling public bodies the policy they are expected to pursue (Edward Rubin).

This legislative shift is paralleled by the rise of the ‘administrative state’. Executive power has increasingly diffused to particular ministers or government departments. They are empowered by Act of Parliament to become semi-autonomous rule makers, setting up their own legislative production lines. The legislation they make in this way is called ‘secondary’, ‘subordinate’ or ‘delegated’ legislation (and it often takes the form of ‘statutory instruments’).

The obvious upside of secondary legislation is that it means the rules that are needed can be made at all. It frees the UK Parliament to focus on deciding the essential general principles rather than delving into the technical detail: [o]ften, Acts only contain a broad framework and [statutory instruments] are used to provide the necessary detail that would be considered too complex to include in the body of an Act” (Richard Kelly). There are also many other practical reasons for delegating legislative power for specific exceptional or mundane purposes, for example, short-term ‘emergency legislation’ for crisis management or the incorporation into domestic law of international/EU law obligations that have already been authorised.

The obvious downside of secondary legislation is that the legislative process is delegated to less transparent and less accountable bodies than Parliament, without the same requirements for scrutiny and public debate in both Houses of Parliament. Often secondary legislation enables the executive to legislate rules governing its own activities, laying it open to the charge that it is ‘playing by its own rules’ and undermining the constitutional separation between the executive and legislative branches of government.

These risks are exacerbated when secondary legislation is used in particularly sensitive contexts, or when the powers delegated by Parliament are particularly invasive. The risks are perhaps most obvious in the case of so-called ‘Henry VIII’ powers, which enable the amendment of Acts of Parliament by secondary legislation. That is why, in the context of Brexit, there has been such focus on the broad ‘Henry VIII’ power in section 8(1) of the European Union (Withdrawal) Act 2018 (“EUWA”), which enables a minister to “prevent, remedy or mitigate” any deficiency or failure to operate effectively in what was previously EU law arising from the UK’s withdrawal from the EU. Section 9 EUWA, and Clause 2(1) and 11(3) of the Trade Bill 2017-19 are other examples of Brexit related ‘Henry VIII’ powers.

These disadvantages can, to an extent, be mitigated through three complementary forms of control:

(a) The first form of control is the terms on which Parliament has permitted the making of secondary legislation in the first place. In sensitive contexts the Act granting the power is likely to both define the legitimate purposes for which the power may be used and lay down procedures that must be observed when doing so (such as a statutory duty to consult). For example, section 8(7) EUWA specifies a list of things that cannot be done with the power, including among other things: “create a relevant criminal offence”, “establish a public authority” and “amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it”. Section 8(8) EUWA also provides a sunset clause under which the power to make secondary legislation expires two years after Exit Day.

(b) The second form of control is parliamentary supervision of the exercise of the power, including through pre-legislative scrutiny and, in some cases, a statutory obligation to follow the negative, affirmative or super-affirmative legislative procedure. For example, Schedule 7 paragraph 1(1) EUWA provides that: [a] statutory instrument containing regulations under section 8(1)… [of a specified kind] may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament”. These procedures enable Parliament to encourage further thinking on secondary legislation before it is made, and, if absolutely necessary, to reject it. Another good example is the special procedure governing the making of certain orders in section 11 of the Public Bodies Act 2011.

(c) Finally, the third form of control is the supervisory jurisdiction of the High Court. Because ministers and government departments are exercising powers in primary legislation, the lawfulness of their actions may be supervised by the courts through judicial review challenge. In particular, the courts are typically prepared to consider whether the procedures laid down by Parliament have been followed, and whether principles of common law procedural fairness have been honoured. The courts will also consider questions of substance, including whether the secondary legislation falls outside the statutory power under which it was made (i.e. is “ultra vires”), whether it conflicts with the statutory purpose and, in certain cases, even whether it constitutes a reasonable exercise of the statutory power.

This comment piece has briefly explained what secondary legislation is and why we have it. These and other matters will be explored further by members of the Public Law team later in the series.