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.
Why?
Three reasons: legal effect, lack of effective scrutiny, and governmental convenience.
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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.
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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.
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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.
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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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“We are so used familiar with the comforting notions of the British constitution that we are often blind to what happens in practice.”
So right.
I’ve just reread Louis de Bernières’ valediction on EU membership (FT, 24 January 2020).
He writes: “More importantly, they [his parents] felt outraged at having endured two world wars only to end up being subject to laws not drawn up by our own parliament”.
A man of classical education, he tells us, but who doesn’t know that the vast bulk of UK legislation is not “drawn up by our own Parliament”.
The myth trumps reality for too many people in the UK .
Or as AP Herbert put it:
‘If anything shall seem,
The Minister shall deem:
His certificate of demption
Shall confer complete exemption.
It was said that Brexit will give rise to vast amounts of new legislation and that the bulk of it will be deemed “secondary legislation”, requiring only a ministerial OK and very little (or no) parliamentary scrutiny. Given that the function of parliament is to propose, debate, modify and scrutinise the laws of the land, this ought to be worrying for any democrat. Plainly, circumstances may arise when a government (even this one) needs to act quickly, in the public good, and such legislative short-cuts are proportional, but over-use of the tactic surely leaves us with little more than a publicly elected dictatorship, accountable only to itself during its lifetime: people should be very concerned indeed.
To make the general public aware of this very real danger, we need a much more resonant term than “statutory instrument” — something that makes people FEEL how aberrant they are. Like the way “dementia tax” provoked a response.
Any suggestions?
Martial law, or demagoguic direction? The former is not technically correct and te later is a more accurate sentiment but you could make the case that a PM with a thumping majority can act to deliver his manifesto, other than the fact that his only real policy was Getting Brexit Done and we will realise soon enough that changed circumstances will mean that such a policy is now a total irrelevance to the world at large
“Ministerial Direction” or “Ministerial Order” might be a plainer way of saying it.
Interesting article. Thank you.
I could not resist commenting on your brief discussion of the word “instrument”. You didn’t mention Scientific instruments. I bring this up because in that use of the term, it is mainly used for devices that enable observation and measurement, and not control. This meaning is even further from the use in Statutory Instrument which is all about control,
There is also a conceptual problem with the approach the civil service takes to secondary legislation.
A few years ago I was trying to make a technical change to primary legislation (basically, I wanted to make it easier to report a specific set of events to the police online rather than it having to be in person at a police station).
There was a bill into which the change would have fitted perfectly. However, as it could be done by secondary legislation, I had to remove it from the bill and start a stand-alone SI route instead.
This seemed to be madness to me. Not only does it suffer from the problems DAG has highlighted here, but, in effect, it actually takes MORE parliamentary time than including the measure in a bill.
In a bill, the measure would have been tiny and (being a positive change within little side-affects) not taken up much time. On its own, though, it needed a whole slot, a lot more individual bureaucracy, and a lot more parliamentary time.
So the civil service is automatically turning to SIs even when primary legislation is a more effective option. This has be driven completely by the demands of the Parliamentary Business and Legislation Committee.
Thank You for an interesting blog.
Having worked in (the oil and gas) industry for many years, I’m quite familiar with SIs. When used for the technical reasons that you mention they can be excellent instruments, especially when accompanied by well-written ACOPs that translate legalese into better guidance for operators who must comply with the SI and its parent Act.
Exploitation of the SI in the way that you have described seems simply to be a means for the current Government (Executive) to achieve some of the goals for ‘constitutional reform’ that are mentioned in the Conservative’s 2019 manifesto, without involving the representatives of ‘the people’. Those representatives (MPs) should be resisting hard but the collective force of the House of Commons is weakened by a single-party majority and an atmosphere of fear; Whipping serves Party and not National interests.
At least there is one thing to be thankful for. No matter what scope and range of legal restrictions are imposed by SIs that are issued without Parliamentary oversight, there is always the comfort that enforcement is (currently) difficult and we seem to have Government approved, free rein to use our initiative and common sense regarding compliance. The ‘Cummings Defence’ may become widely used by defence lawyers in future.
This is what happens when a one agenda party is in power and has a whack-a-mole reaction to any emergency cropping up. We have sub-standard politicians whose main interest is their careers.
The problem could be solved quite simply. All statutory instruments should have an end date. If the SI is required the primary legislation that provides its foundation should be amended and parliamentary time found, such as to make the statutory instrument redundant.
No statutory instrument should have a lifespan of more than 12 months, nor can the SI be extended, or a similar SI be introduced.
Neither government not opposition will introduce such a measure because of the “benefits” of ruling by fiat, and that is one of many reasons why we need a written Constitution.
Unfortunately this would rapidly become unworkable.
One legitimate use of SIs is to set technical specifications to something defined broadly under primary legislation.
An example is the Statistics and Registration Services Act states that ministers to access statistics before publication where they need to see the statistics for briefing purposes. However, it is silent on how long that pre-release access is.
The Pre=release Access to Official Statistics Order specifies that the pre-release access period is 24 hours.
By using an order like this, it is possible for a future government to amend the time (for instance, removing it entirely by setting it to 0 hours, as some people have called for) quickly and easily.
It would be pretty unlikely that a Bill would be found in time to change the Act within 12 months.
Also, bills are usually (though not always) lost when parliament porogued. This could mean that the only opportunity for making a change could be unexpectedly lost which could have important consequences.
SIs are not, by definition, bad things. The best route is *only* use SIs for appropriate things (e.g. technical regulations) and to ensure that there is some scrutiny.
Below is an edited extract on the method by which Sir Christopher Chope M.P., one Friday in June 2018, blocked a bill that would have made “upskirting” a criminal offence. Sir Christopher Chope said he was objecting to parliamentary procedure rather than the law itself. MPs shouted “shame” after Sir Christopher objected to the bill. He explained that he stopped the bill from progressing because he disapproved of how the legislation was being brought in. “The government has been hijacking time that is rightfully that of backbenchers,” he said. This is about who controls the House of Commons on Fridays and that’s where I am coming from.” He accused the government of trying to “bring in what it wants on the nod”, adding: “We don’t quite live in the Putin era yet.” The bill was expected to sail through the Commons on Friday, but parliamentary rules mean it only required one MP to shout “object” to block its progress.
Following this precedent it only needs one M.P. to shout object to a Statutory Instrument for it to fail. Or am I wrong?
Chope was objecting to a private member’s bill, if I remember correctly, not an SI.
It is not so simple to block SIs.
The No 4 Regulations use the word “comprises”, loved by patent attorneys, but not used so much by other lawyers. Three patent attorneys living together would have no hesitation in concluding that their household comprised one (and indeed both two and three) adults, enabling each of them to choose their own linked household.
Before 1979 British attorneys tended to use the word to be deliberately ambiguous, but the modern, open, sense has been endorsed by the judges.
Either way, it isn’t a word that belongs in the criminal law.
The Government issued guidance under statutory instruments not published on the https://www.legislation.gov.uk/ website:
“The Customs (Origin of Chargeable Goods) (EU Exit) Regulations 2019” https://www.gov.uk/government/publications/the-customs-origin-of-chargeable-goods-eu-exit-regulations-2019
“The Customs (Tariff-Free Access for Goods from Overseas Territories) Regulation” (sic)
https://www.gov.uk/government/publications/the-customs-tariff-free-access-for-goods-from-overseas-territories-regulation
… or am I missing something?