Sir Stephen Laws KCB, KC (Hon) is Senior Fellow, Policy Exchange’s Judicial Power Project and former First Parliamentary Counsel
Lord Judge reminds us that tensions between those on whom executive and legislative functions are vested is not a new phenomenon. However, to equate the state of tension that exists today with the path that led to civil war in the 17th century, as Lord Judge does, is misconceived and alarmist.
Very similar points about the legislative powers of ministers were made, in comparably apocalyptic terms, in the 1920s by another Lord Chief Justice, Lord Hewart. They have been recycled, in some form or other, in almost every subsequent decade. The implication that we are seeing an unprecedented disregard for traditional demarcations by power-crazed 21st century governments is unsustainable.
Rather, Lord Judge’s diagnosis is best seen as just the latest contribution to the long running debate about the appropriate balance, for current circumstances, between executive powers and the restraints imposed on them by Parliamentary accountability. In the nature of our politics, how that balance is struck is constantly in dispute; and so it should be, because that is the process by which an acceptable balance is secured and maintained
In that process, Lord Judge’s contribution is interesting and robust; but it would carry more weight if it were not built on some highly questionable premises.
He suggests that a modern Prime Minister is invested by our system with the absolute power of a Stuart Monarch, and implicitly by the related assumption that Parliament (including the House of Lords) has no significant influence over government decision-making.
If the political events of 2022 and the previous six years have proved anything, it is that these are both myths. Unequivocal evidence has been provided that behaving as if the myths can be relied on as truths is likely to result, in practice, in serious adverse political consequences for those who make that mistake.
Usually, the mythical nature of these propositions is kept well hidden. It suits government for people to believe that resistance to its wishes is futile. It suits other Parliamentarians for people to believe that Parliament’s influence is less than it needs to be and should be strengthened. The very real inhibitions on Prime Ministerial power, and the extent of Parliament’s significant influence over government, are usually kept invisible because it is in the interests of the PM and the executive to anticipate and accommodate what each would require of them, and so to avoid public manifestations of their need to modify their ambitions accordingly.
In recent times, the strength of the inhibitions that Parliamentary accountability imposes on the Prime Minster and government has become more obvious as a result of a combination of political misjudgements and some very unusual circumstances. Those circumstances have included a referendum result requiring the government to do something no government would normally attempt (viz implement a policy for which there was, at the time, no consensus in Parliament) and the pandemic measures that effectively locked Parliamentarians out of the usual, informal channels otherwise available for influencing government. This has all cast more light on the workings of our constitutional arrangements, but it has not revealed dysfunctionality. On the contrary, it has demonstrated that the government is indeed always subject to influences that promote moderation, consensus building and effective democratic accountability.
Recent events have even provided evidence (which, rightly, will never be confirmed) that the Palace was willing, if it became necessary, to intervene to prevent a PM from bringing the house down on everyone’s head by exercising what Lord Judge mistakes for an absolute power to insist on an election. Whatever the truth of that, it is at least clear that the system worked to secure a more sensible outcome.
In that connection, Lord Judge is quite wrong to suggest that it is relevant to whether the King can be relied on to perform His constitutional role as regards the dissolution of Parliament that He is separately reported as having accepted ministerial advice about the contribution He should make to furthering the Government’s foreign policy objectives. It was the Stuarts who thought that the conduct of foreign affairs was a personal prerogative of the Crown.
Another false premise of Lord Judge’s apocalyptic vision is that there is a fundamental distinction between primary legislation and secondary legislation that qualifies the latter to be treated as the unchecked exercise of executive power.
For at least the best part of two hundred years (since the Great Reform Act), the role of legislative change in our constitution has been clear. It is rightly regarded as a tool of government; and its use needs to be compatible and coordinated with the government’s programme for implementing its electoral mandate, while of course requiring the consent of Parliament. In the overwhelming majority of cases primary legislation is initiated and drafted by government and then presented to Parliament for scrutiny. If Parliament wants it amended, government takes responsibility for securing that the amendments it concedes are in good order.
It follows that whether a piece of legislation takes the form of something authored by a Minister or of something authored by Parliament is just that: a difference of form, not substance. Primary legislation is no less the work of the executive than secondary legislation. But that fact does not minimise or qualify the importance of Parliament’s influence over the production of both forms of legislation.
The real distinction between the two categories of legislation is confined to matters of degree: the level of the scrutiny to which the legislation is subjected and the extent to which the output is open to challenge in the courts. Moreover, the choice as to the level of scrutiny has always been expressly endorsed by Parliament itself. None of this is in any way comparable to the situation in the 17th century.
I am sure modern governments and Parliaments do, from time to time, make misjudgements about what they require or allow to be done by primary and secondary legislation respectively. Maybe they have made more recently. If it appears that they have, there is a case for saying that at least part of the reason for an increased use of secondary legislation has been the political necessity to engage with the volume, intricacy and inaccessibility of the output from one of what is perhaps one of the broadest ever delegations of legislative power: the one conferred half a century ago by section 2 of the European Communities Act 1972.
Whatever the force of that argument – and it is bound to be contested – there are certainly factors that are more relevant to how a choice between primary and secondary legislation should be made, and to improving the choices that are made, than unconvincing comparisons with Stuart monarchs, who accepted no obligation of accountability to Parliament at all.
Choices between primary and secondary legislation need to involve a clearer understanding of what Parliamentary scrutiny is for. Parliament is a political institution that cannot reasonably be expected to do more than a political institution is qualified and willing to carry out. Legislation needs to be scrutinised by Parliament in a way that secures that its politically salient features are addressed and, by being accepted by Parliament, have legitimacy conferred upon them. The scrutiny also needs to provide challenge to those involved in preparing legislation to maintain high standards of technical quality – something that, in practice, is often effectively achieved through random sampling.
The true nature of the current arrangements for the scrutiny of secondary legislation also needs to be recognised. It is by no means as cursory as the limited Parliamentary formalities to which secondary legislation is subjected would suggest. If an attempt to do something that has significant political salience is undertaken by means of secondary legislation, there is likely to be both a public consultation and consideration by the relevant departmental select committee. In practice, Parliamentarians will have the opportunity to exercise informal influence about the substance of the matter on government. The absence of formal powers of amendment does not prejudice the capacity of Parliament to influence government to change its mind. Instruments can be and often are withdrawn and modified.
When it comes to the scrutiny of secondary legislation at the technical level, the arrangements, including its consideration by the JCSI, are arguably more robust and are certainly more structured than those for primary legislation.
Of course, this does all make it is necessary for Parliament to have effective mechanisms for identifying politically salient provisions in secondary legislation that are not otherwise drawn to its attention by government.
There is, perhaps, some scope for reform in this area. But, in thinking about what is needed by way of reform and in making the case for it, it is important to take into account both the main reasons why, in practice, governments resort to wide powers to make secondary legislation, and also the reasons why, for government itself, it is often not the best option.
It is a mistake to assume that governments ever seek powers to legislate by secondary legislation in order to introduce politically salient reforms with only limited scrutiny. Most rational politicians only do controversial things because they think they will be beneficial and they want to take credit for the benefits. That is not compatible with legislating surreptitiously.
The most common reason for seeking wide delegated powers is more prosaic. It is that the government is unable to achieve a consensus on a settled policy in time to meet the legislative timetable for implementing it.
However wide powers to make legislation – framework Acts – are very difficult to get right if, as is usually the case, you cannot be certain about how they will eventually be used. They carry a relatively high risk that the policy will fail because the eventual policy is not clearly within the terms of a power framed without that specific outcome in mind.
They also inevitably carry with them the power to undo the reform they are used to implement. That creates an increased risk of policy failure both because unratcheted change is always, in practice, more difficult to make stick and, relatedly, because the legitimacy conferred on the change, by being only qualified, is less effective for persuading those affected by it to accept the proposed change.
These are the considerable disadvantages of proceeding by way of wide general powers to make secondary legislation. They are more convincing reasons for limiting the practice than the shadow of a block outside the Banqueting House.