The Rt. Hon the Lord Judge is Convenor of the Crossbench Peers and former Lord Chief Justice of England and Wales
I am grateful to Professor Ekins KC (Hon) and Policy Exchange for facilitating this discussion.
The paper under discussion was prepared and delivered as a lecture. It was given to the Society for the study of English legal history, the Selden Society, and delivered at the beginning of November 2022, just a few days after the Prime Minister, Liz Truss, had resigned. The title may have led some respondents to misunderstand the lecture as an argument that the absolutist constitutional position of the early Stuart kings has been vested in today’s prime ministers. I doubt if anyone present would have so understood it. The lecture is said to be “alarmist”: it was certainly intended to raise the alarm. The increased centralisation of power in the executive is indeed an alarming trend.
The title was chosen just because in 2022 the Dissolution and Calling of Parliament Act, an important feature of the Royal Prerogative determinedly exercised by the Stuart kings, and not least in 1622, was expressly resurrected, and its exercise effectively vested in the Prime Minister. More or less simultaneously the Elections Act 2022 undermined the absolute political independence of the Electoral Commission. Both enactments enhanced the power of the Prime Minister over the electoral process. In the meantime the system of virtually uncontrolled prime ministerial appointments to the House of Lords was and is a continuing scandal. Should these accretions to the influence of the Prime Minister be ignored? Should the same influence over the membership of the legislature be disregarded? I should have welcomed greater discussion of these issues.
No one needs or needed reminding that 17th century England was not a democracy. If that essential difference between the Stuart kings and modern prime ministers were not clear enough, the tribulations of John Selden himself at the behest of the Stuart king were narrated and the audience was reminded that Prime Ministers cannot lock up those who disagree with him. Of much greater significance in the present context, the lecture underlined that Prime Ministers do not hold office until their deaths. There had recently been what the lecture described as a game of “musical chairs” in 10 Downing Street. It was surely not necessary to spell out that without a general election we had somehow lost two prime ministers in the previous months, and that there are different ways in which Prime Ministers come to forfeit their office. “Musical chairs “was intended to convey the antithesis of absolute constitutional power.
The emphasis was that although Prime Ministers come and go, the powers accreting to the office remain untouched by their departures. Until recently Boris Johnson, and even more recently Liz Truss had, and today Rishi Sunak has, and tomorrow’s Prime Minister, in his or her turn, and all future prime ministers, will inherit the same former royal power to create members of the legislature in the House of Lords, the new powers to dissolve the elected chamber, and inimical to its independence, to issue “guidance” about how the Electoral Commission should conduct its oversight over elections, and, as I developed later in the lecture, deepening influence over the legislative process itself.
I immediately acknowledge that a majority in the Commons does not enable the executive to do anything and everything. Of course, members of the governing party do not always acquiesce. On occasions, not all that often, nor even often enough, but certainly often enough not to be ignored, they demand and achieve changes to legislative proposals. Sometimes indeed they lose confidence in the Prime Minister, who lose and, at the risk of repetition, twice recently, had lost office. What I was seeking to identify, and did so in express language, but perhaps with insufficient emphasis, was the “approach” of the executive to the legislative process; it expects to carry its legislative proposals. This was exemplified by reference to the remarkable economic proposals proclaimed by the then new, and very newly removed, Prime Minister, Liz Truss. She had held ministerial responsibility in a wide variety of departments under different Prime Ministers, and notwithstanding, indeed perhaps because of that experience, she assumed that as the new Prime Minister, her proposals, proclaimed to the public before they were revealed to Parliament, would be accepted by the Commons (and as finance legislation be unamendable in the Lords). She was reflecting an approach displayed by her predecessors in 10 Downing Street. Indeed we now know that she was bewildered that her prime ministerial “mandate” (whatever it was) did not entitle her to achieve her objectives.
What I described as “the approach” is reinforced by executive control over the legislative processes. It is in charge of the business of the Commons. In debate backbenchers have very limited time to speak. As long ago as 2009 the Select Committee on the Reform of the House of Commons (the Wright Committee) urged a review of executive control of the business of the Commons, a theme taken up more recently by the Constitutional Unit at UCL., arguing that the Commons, not the executive, should govern its own time. It is hardly surprising that the day-to-day experience that the executive is in charge of the processes, contributes to this “approach”. It is exacerbated by the vast volume of legislative business that the government thinks it must “get done”, and time for full debate is curtailed. Increasing streams of legislation crying out for the detailed scrutiny required by primary legislation are presented to members of the Commons who dedicate much of their working time to their constituencies, and understandably have less time to examine complex legislation. Proper scrutiny is increasingly avoided by presenting the Commons with skeleton bills. And perhaps I may just add that my experience of dealing with possible amendments to legislation reinforces my belief that it is not enough for proposals for amendments of any substance to find favour with the relevant ministerial head of Department; 10 Downing Street must be consulted. Someone there must agree.
For all the argument about primary legislation however, the most striking feature of the responses is that none of them disputes, and some expressly agree, that there are serious problems associated with secondary legislation. Secondary legislation has a sensible, constructive place in the legislative structure. But statutes creating powers which enable ministers to make law, sometimes of direct impact to the citizen, sometimes creating criminal offences, and simultaneously empowering them to amend or repeal current Acts of Parliament without effective Parliamentary scrutiny have become commonplace.
Just two examples of Bills in process in the Lords since the lecture. We are about to face the Retained EU Law (Revocation and Reform) Bill; the current calculation is that its implementation will involve the revocation and replacement of about 4000 statutory instruments, many of which deal with important issues which directly involve the daily lives of the electorate, such as employment rights, environmental rights and obligations, food safety, and maternity rights. Consider clause 15; any new replacement regulations will be dependent on whatever provision the Minister “considers to be appropriate” to achieve the same or similar objectives as the original statutory instruments, and to create new regulations even if they do not achieve that objective. The judgement about what is “appropriate” is left exclusively to the Minister, who, by clause 19 is also vested with further power to “modify” any primary legislation, including the Bill itself, when it is enacted. This legislation is intended to “take back control” from the EU over wide swathes of our law, but instead of returning control to Parliament, as promised in the 2018 EU Withdrawal Act, it is surrendering it to a minister. Parliament is, in the words of the Secondary Legislation Scrutiny Committee, “Losing Control?” over this remarkable law-making process. In very much brief summary, we are simultaneously facing the Strikes (Minimum Service) Bill. This superimposes Henry VIII powers over a skeleton bill and through secondary legislation enables the creation of fresh obligations on trade unions whose members are exercising the right to withdraw their labour. Surely this is a proposal which should be dealt with in primary legislation.
Not much attention has been paid in the responses to the powerful language used by the Secondary Legislation Scrutiny Committee (“Government by Diktat: A call to return power to Parliament”) and the Delegated Powers and Regulatory Reform Committee (“Democracy Denied? Calling for Power between the Executive and Parliament to be rebalanced”). It is noteworthy that in the recent debate on the Reports in the Lords they were greeted with cross-party and reasoned and unanimous approval. On one view this is indeed “apocalyptic” language, but if it is, a close reading of the Reports would demonstrate that it is justified.
Neither House can amend any part of a Statutory Instrument. The Hansard Society rightly argues that “the scrutiny procedures are superficial and often a waste of time, particularly in the House of Commons…. where debate is frequently perfunctory”. Debates on statutory instruments are dependent on the government agreeing to make time for them; it cannot be obliged to do so. There are numerous theoretical controlling procedures, but in practice they are not deployed. And, perhaps finally, there is the unanswerable evidence that the Commons has not rejected a single statutory instrument since 1970. I profoundly disagree with the assertion by Sir Stephen Laws that the difference between primary and secondary legislation is a “difference of form, not substance”; if however he is right, that makes Parliamentary scrutiny of primary legislation not less but more deficient.
Whatever the arguments relating to the approach of the executive to primary legislation, law making by secondary legislation has become a growing, and I repeat, an “alarming” feature of our constitution. Its effect is increasing centralisation of power in the executive. With great respect none of the responses has diminished my concerns.
I await the results of the Hansard Society Review with interest. It will merit close attention from us all.