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Written by Tom de la Mare QC.

Why is legislating by Statutory Instrument so tempting for Government?

o        Limited duties to consult.  Either the parent statute requires this (some do, but many SI-making powers contain no such obligation) or there is no duty – no common law obligations (bar, say, an exceptional legitimate expectation etc.) case.  So SI-making is available for “fast and firm” decision-making, well within the timeline for Bill making, and particularly where Government cannot tolerate even the 6 week “holiday consultations” that now appear the norm.  And of course the Government controls the process levers for new statutory consultation obligations.  (Further Research Project: I have a hunch you won’t find many new ones).

o        Limited Parliamentary scrutiny mechanisms – JCSI membership is a “punishment beating” for an MP – no effective scrutiny, limited remit.  DPRR SC – more high powered, but largely toothless,  it works through soft law pressure (censure, persuasion etc), its approach can be inconsistent and (non)-results largely speak for themselves (its sensible recommendations are routinely ignored).

o        Parliamentary debate – largely a fiction, poorly attended or invested in, “all or bust”, no amendment; Commons record speaks for itself; HoL – “motion of regret” just about most the HoL is willing to do; just a tiny handful of SIs have been voted down in the recent years (only 17 in the last 65 years, none by the Commons since 1979).  Scrutiny is, with a few isolated exceptions, a fiction; and progressively so under the snow of Brexit legislation, Covid legislation and urgency procedures.

So there is no prior statutory consultation (very often), informal consultation at best, and, as a default, no meaningful Parliamentary oversight in a time-abbreviated process.  The result is minimal scrutiny or informational input at the beginning or end of the law-making process. 

That makes for remarkably poor legislative process and constitutes a very low quality safeguard agains the making of ‘Bad SIs’ (plenty of good SIs, and even more OK ones are made from the 2,000 made a year).

The dangers of Bad SIs

On my approach a “Bad SI” is: (a) one that is unlawful on one of the established grounds for review; or (b) one that, due to the low quality of its construction, is at unnecessary risk of being found to be so (so forcing the Court into purposive construction, the Executive into post facto justification etc).

Bad SIs produce political problems, precisely because of the systemic chaos that flows from a Bad SI applied to many cases or scenarios being struck down or even challenged.

The history of SIs being struck down in immigration judicial reviews is like a textbook study of the problem:

·         A bad SI is made (imposing systemic unfairness, applying unlawful/HRA/Refugee Convention/EU law incompatible presumptions etc) and then applied to a large number of cases.  This often happens in an area where political clamour for immediate, tough action is at its highest.

·         Serious executive/administrative action is taken off the back of that SI – action amounting to, say, false imprisonment, assault etc if done without lawful authority.  Immigration detention is a case in point.

·         The SI is struck down and floods of public law and possibly private claims result, generating a political controversy, or friction between Executive and Courts. The Courts are then accused of acting politically.

·         Cases like Draga, DN (Rwanda) and Lauzikas illustrate these problems.

What is to blame – “activist courts” or rather an “aggressive/incompetent executive” or a “supine Parliament”?

This, incidentally, is my main charge against the Faulks Panel – it assumes without investigation the existence of and hampering of “good governance” and identifies “bad/political judicial review” as the problem.  The review is fundamentally unbalanced as a result.

The problem amplified

That basic temptation to rule-making without scrutiny/accountability/compromise, and the opportunities it affords, has then been ramped up by:

·         Skeleton Bills – all the juice will be the SIs.  Brexit Bills are a case in point, the Immigration and Social Security Coordination Bill being a topical case in point.

·         Wide, open textured vires language.

·         Henry VIII powers: again, Brexit Bills and EUWA/EUWAgA a case in point.  The problem is a combination of their number, their intersection and their width/open texture (the language of “If the Minister considers it appropriate” etc)

·         Misuse of the urgency procedure, so that very important SIs are laid as made subject to affirmative resolution (“made affirmative”) and only require debate with 28 Parliamentary days (i.e. no days for recesses, prorogation etc).  The most important SIs then receive, in practice, the same treatment as the most inoffensive that require no Parliamentary input and are laid simply for information (“laid as made”).

The nightmare scenario

If you were looking for a device that enabled Executive:

·         To avoid public scrutiny, whether by “stakeholders” or Parliament;

·         To push through unpopular or uncompromising  or ‘tough’ legislation; and

·         To do so fast,

then a full Henry VIII SI-making power in a Skeleton Bill with broad open-texture an urgency procedure is what you want. 

Remarkably, there seems to be a lot of them about.

The descent into addiction

The problems of accountability and over-broad/unchecked executive powers presented by SIs has been around for years, but has only recently reached epidemic proportions:

·         Hansard Society – Devil in the Detail, describes in 2014 the addictive attraction of SIs from an Executive perspective.  This was for many years a low leve, coca leaf type addiction; insidious, but niche, relatively low cost / low impact.  Ironically s.2 ECA Henry VIII powers (for years the main source of such rule-making) were well scrutinised and policed by Parliament – because of Parliament (being keen to keep EU legislators (and the UK Government in the Council) in check.

·         Brexit is that coca leaf refined into cocaine.  As the PLP Brexit Report documents, the Government has gone harder and deeper and longer, justifying its actions in fundamentally sidelining Parliament by reference to: (a) complexity; and (b) the scale and timeframes of the task.  Both are very real problems/demands, but neither justify a near total failure to invent new Parliamentary processes and checks to provide compensating Parliamentary control/input.  The only development was the Sift process (a good one), and that was: (i) abandoned for EUWAgA (with no good reason); and (ii) often outflanked by “urgency”.  It was in this phase that the Govt began really to push the envelope on “laid as made” SIs that would otherwise require draft negative or draft affirmative procedures.

·         Covid is the crack cocaine phase of this addiction.  258 Coronavirus-related SIs have been made according to the Hansard Society dashboard.  Of those:

o   62 were “made affirmatives”, of which 54 were made with the s.45R “urgency” procedure in the Public Health (Control of Disease) Act 1984),

o   9 were “draft affirmatives”,

o   189 “made negatives” and

o   1 “laid only”. 

o   Made affirmatives account for all the national and local lockdown Regulations, all the mask regulations, but not the international travel restrictions (because they can be made using a “made negative” procedure under s.45P of the 1984 Act).

o   Of the 189 “made negatives” about 2/3rd breached the convention that they are made 21 days before they come into force.

The consequential constitutional disputes coming to the boil

Barring fundamental reform of the SI process the following types of constitutional dispute can be expected soon, each of which: (i) may be a substantial constitutional flashpoint; (ii) is tied back to the deficiencies of the SI-making process:

·         Urgency: Cases challenging the use of the s.45R “urgency” procedure.  There may be attempts to fold such arguments into the Dolan challenge, which would be unfortunate as the justification for such urgency is far sharper at the earlier part of the Covid response, which is the part containing the quarantine/lockdown at home  rules of dubious vires.

·         Henry VIII: There is a vast corpus of EU Exit law waiting to come into force on IP Completion Day (if not amended again to take account of any Free Trade Agreement concluded with the EU.  Since such legislation is not yet in force and may not come into force it is hard to see how time is running, particularly since it is not clear for individuals/companies affected whether and how it will affect them.  (There will still be delay arguments by HMG, however unattractive).  A good deal of this legislation is of questionable legality if any kind of strict approach is taken to the question of “deficiency” under s.8 EUWA 2018, on which HMG has a very wide reading indeed.  The PLP decision barely scratches the surface of the issue; and the Cherry/Miller2 judgment, and its receptive stance to the PLP’s arguments, provides cautious grounds for optimism that the Supreme Court is concerned.  There will be future SCt showdowns over aggressive use of Henry VIII powers, and pretty soon.

·         Vires in Skeleton Bills: precisely because of the sidestepping of Parliament and the effects described above constitutionally principled reasons can be advanced to construe ostensibly wide enabling powers narrowly.  The vice of a skeleton bill is that it provides no meat from which to infer statutory purpose or Padfield improper purposes – instead “everything is possible”. These points converge with (but are independent of) Henry VIII concerns.  Covid Regulations may be a test bed (but a bad one, given that it is the acme of “tough cases”) for these arguments given the very open language of s.45C of the 1984 Act.

·         Deference due to Parliamentary SI scrutiny:  Lord Sumption suggested in Bank Mellat that a hands off approach to rationality review might be if the “draft affirmative” or “made negative” procedures were used.  Until Bank Mellat the orthodoxy had been that of the approach of the House of Lords in Javed in 2001 treating affirmative resolution debate as irrelevant (in effect reversing this aspect of Nott CC and “Super Wednesbury”).  A full revisiting of this issue seems well overdue given:

o   the arbitrary results the results of deference (“laid as made” – no deference, if prompting Parliamentary debate, “made negatives” – ditto, “draft affirmatives” – potential deference, “made affirmatives” – no deference? Deference if later upheld, even if with no debate?),

o   the default reality of minimal or no scrutiny, and

o   the Art 9 BoR discomforts of investigating the scope and content of debate.

·         Void/voidable – and the “second actor” problem: void SIs create real headaches for private law rights claims, where invasive action (arrest, detention etc) is taken on the back of an SI; equally many SIs are made to be relied upon by other people (such as the copyright SI at issue in the BASCA litigation).  The void/voidness debate – along with prospective overruling – and the two and three actor problem (i.e. a private third party relying in good faith on a presumptively valid SI) – are hardy perennials of public law practice and exam questions.  The Supreme Court is grappling with some of this issues in TN in November.  The problem may well come into sharp focus with some of the Covid legislation, particular those parts with a criminal hue.  The contractual doctrines of frustration and force majeure may also take one there.

·         Tameside for SIs: given the unsatisfactory statutory patchwork of consultation obligations, and the increased government to any or any substantial consultation, there may be an increased focus on Tameside type arguments about the quality of investigation undertaken by a Minister before adopting an SI. 

·         Unfairness arguments may also be constructed out of any differential or privileged access to the SI drafting process or policy formation underlying it (e.g. if business or a Trade Union is consulted on a draft SI, but others are not).  The processes of informal consultation seen during the drafting of Brexit SIs carry real dangers.

The way forward: reform?

This is and should be recognised to be the major constitutional crisis of our day (sitting alongside and as a product of Brexit and Covid), and perhaps with Covid is inching towards being so – cf. social media and wider chat about the (lack) of protections against an Enabling Act; and the back bench rebellion over Covid Regulation making (that has produced at least a vestige of prior Parliamentary debate, though about Regulations whose base components has long since been set in stone).

Fundamental reform is long overdue of: (a) the Parliamentary processes for granting SI making powers; (b) Executive internal controls over their use; and (c) ex post review of SIs by the Courts (which needs to be led by reform to (a) and (b)).  The guiding objects should be:

·         To impose meaningful Parliamentary control and oversight over policy-making and curtail the use of SIs to dodge scrutiny, debate and the forms of compromise that might result therefrom;

·         To increase the transparency, legitimacy of and public confidence in SIs;

·         To improve the quality of SIs and so reduce the “toothpaste effect” where bad SIs are challenged in Court, with systemic effects.

A Royal Commission, fully independent of the three branches of government, or some such body of heft and independence is required – a committee with real insight to Parliamentary procedure, the realities of rule-making and the nature and limitations of ex post scrutiny. 

The most obvious way to do so is to put this topic firmly and centrally within the remit of the “Commission for the Constitution, Democracy and Rights”, as promised in the Government’s Manifesto, which should itself be a Royal Commission.

Failing that the topic of SI powers should be an important one on the radar of the Law Commission, to the extent within its remit under s.3 of the Law Commissions act 1965 (though this option is sub-optimal in a number of respects).

Parliamentary reform?

Others far better qualified than me have long been addressing this topic (Hansad Soc, PLP etc).  But in my view the nub of the required reform is that Parliamentary procedures need to be amended:

·                    The oversight committees proper teeth and a remit at Bill stage to set binding “quality rules” for SI making powers, covering a checklist of: clarity of vires/purpose; appropriate choice of consultation safeguards; choice of scrutiny procedure linked to policy-making power and content etc

·                    The scrutiny of draft/made SIs also needs to be fundamentally repurposed:

o   to reflect extent to which policy making has shifted to SIs (and to deter Skeleton Bills);

o   to build on the success of the EUWA ‘sift procedures’ to identify SIs of importance requiring affirmative procedures; and (

o   to adapt to the technicality/complexity of subject-matter.  There is a potential tie in here with the subject specialist Select Committees and giving them a role/duties in relation to SI scrutiny; and also a case for greater recourse to external expertise – you cannot scrutinise what you cannot understand. 

o   there should be an obligation for any draft amending Regulation, as part of the consultation and ensuing Parliamentary scrutiny process, to publish with it a consolidated draft.

·                    MPs and the Lords should have the power – at least for certain types of SI (those requiring affirmative resolution because of importance/subject-matter) – to propose amendments before voting down SIs.

·                    More time needs to be cleared for debate of affirmative/policy-laden SIs.

Legal reform?

I think a new Statutory Instruments Act should be proposed containing measures which (amongst other suggestions):

·         Fixes rules on the gaps between laying/making/publication and binding effect;

·         Codifies rules of interpretation for the vires of rule-making powers and sets limits upon open texture which have to be derogated from

·         Codifies or standardises consultation rules and procedures (a menu to be chosen from) for SI making (departure from which requires careful justification)

·         Codifies and standardises the ever-present (but often differently worded) mumbo jumbo about the scope of rule-making power (boiler plate about “different provision for different cases” etc)

·         Sets out default rules to address the second actor problem, at least in private law)

·         Sets out binding rules about sub-delegation (when it is permissible, what is required in an SI to effect it, what its procedural and substantive conditions are to be etc).

The reality

Sadly there is no prospect of this Government or this Parliament taking any such steps toward curtailing or structuring its extravagant powers. 

Forget the turkeys not voting for Christmas, turkey breeders don’t vote to abolish Christmas.

Cue more friction between the Executive and the Courts, particularly if and whent the Courts act to protect the role of Parliament.

The way forward is probably some form of “constitutional self-help”, involving Rule of Law and Civil Society groups like the Hansard Society, PLP, Bingham, JUSTICE et al convening some kind of independent commission (like the JUSTICE All Souls project of the ‘70s and ‘80s) to look at the problem, identify its depth, effect and cost; and propose solutions.

This session was presented by Tom de la Mare QC at PLP's Judicial Review Trends and Forecasts virtual conference series October 2020.

Blackstone Chambers

13 October 2020

+44 (0)207 5831770