12th June 2020
In a Financial Times video yesterday I set out some particular concerns about the Coronavirus quarantine regulations, and in earlier posts on this blog I have set out the problems with earlier versions of the Coronavirus restrictions on movement.
This post takes a step back from particular regulations to set out briefly why we should be worried about the government’s use and abuse of statutory instruments.
The phrase “statutory instrument” is odd for someone who is neither an official nor a lawyer: instruments in everyday language are tangible things – musical or surgical instruments.
Statutory instruments are not really tangible things (though they can be printed): they are dull-looking and often dense formal documents.
And putting the word “statutory” in front means you also have the sort of legalistic term that for normal people is a prompt for glazing over and switching off.
Yet statutory instruments are – or can be – troubling things.
Three reasons: legal effect, lack of effective scrutiny, and governmental convenience.
First: legal effect.
As the word statutory tells you they are the law of the land, as much as any Act of Parliament.
In constitutional theory, a statutory instrument should be within the parameters of a parent Act of Parliament.
And again in constitutional theory, a statutory instrument can be challenged in court as outside the scope of that parent Act.
But in practice, the provisions of parent Acts can themselves be very wide and the prospect of any court challenge usually unrealistic.
In effect, if not in technical legal form, they are as much primary legislation as any Act.
Second: lack of effective scrutiny.
Statutory instruments become the law of the land without any scrutiny (or any real scrutiny).
They are difficult to challenge in parliament and impossible to amend.
And the sheer number of them means that there is no alternative to this lack of real scrutiny.
The purpose of statutory instruments was historically for there to be a flexible way of legislating on technical issues (as envisaged in parent Acts of Parliament) or to place on a domestic legal basis laws agreed elsewhere (for example under the European Communities Act).
Now statutory instruments, other than a nominal and ceremonial moment in parliament, are effectively legislation by government departments.
Constitutional theory holds that that it is the legislature that legislates and the executive that executes, but the reality is that the executive legislates.
Statutory instruments are in effect executive orders by another name.
Third: governmental convenience.
Once you have a thing that (a) has the same effect as an Act of Parliament and (b) has none of the inconveniences of actually passing an Act of Parliament, you will tend to get abuse.
The government will have every reason to try to use statutory instruments as much as possible and for as many different things.
And so the recent coronavirus regulations have created the widest criminal offences in modern legal history, potentially criminalising everyone the moment they walk out of their home.
They even purported to criminalise what goes on between consenting adults in their own homes.
These regulations were, at least on their face, significant interferences with fundamental rights.
But they were slipped out without formal announcement and had immediate legal effect.
And because they were under the Public Health Act, there was not even any parliamentary stage before they took effect, ceremonial or otherwise.
The fact that the regulations were as ludicrous as they were illiberal is a happy accident.
Their lack of practical enforceability should only be a relief to the constitutionally gullible.
We are so familiar with the comforting notions of the British constitution that we are often blind to what happens in practice.
What we now have is legislation, on an industrial scale, from the executive, sometimes casually interfering with fundamental rights.
The government – ministers and officials – are now in the habit of doing this.
And that is why we should be worried about the use and abuse of statutory instruments.
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