In response to the Covid-19 pandemic, the government has laid over 360 Statutory Instruments (‘SIs’) before Parliament. This continues a wider trend: government reliance upon delegated legislation to enact policy. Whilst this trend can be justified by the need for speed and flexibility, the overuse of delegated legislation has placed additional strain upon an imperfect scrutiny system. This piece outlines the effects of the urgency procedure contained in section 45R of the Public Health (Control of Disease) Act 1984 (‘PHA 1984’), before examining two cases of apparent abuse. This piece argues that misusing the urgency procedure (under section 45R of the PHA 1984) amplifies flaws in the scrutiny system. Finally, this piece considers various incremental reforms.
The ‘urgency procedure’ under section 45R
To understand the effects of the procedure under section 45R of the PHA 1984, it is worth first briefly explaining the general framework for scrutinising Statutory Instruments. The Statutory Instruments Act 1946 contains three main scrutiny procedures: the affirmative, negative and no procedure. Most regulations undergo a variation of either the affirmative or negative procedure. The affirmative procedure, which is intended for more serious instruments, requires the active consent of both Houses before an instrument can become law. By contrast, under the negative procedure, which is intended for more trivial regulations, an instrument becomes law within a specified period unless either House agrees to annul it.
Scrutiny procedures are assigned when the enabling power in the ‘parent’ Act is drafted. The intensity of the scrutiny procedure is therefore assigned ‘blind’ by Parliament, before an instrument is drafted. This means that serious instruments can sometimes end up undergoing the negative procedure, and more trivial instruments, the affirmative procedure. Concern over this is not new – the issue has been highlighted by the Commons Procedure Committee since 1995.
Regulations created under the PHA 1984, are normally subject to the negative procedure – with the exception of those created under section 45C. Regulations created under section 45C (like many of the recent coronavirus regulations) are normally supposed to undergo the ‘draft affirmative’ procedure. This stipulates that draft instruments must be laid before Parliament until approved by resolutions of both houses. This stage provides an opportunity for scrutiny by various parliamentary committees (and on the floor of each House), whereby inappropriate delegations of powers, errors in drafting and ambiguities or imprecisions may be identified.
However, when a Statutory Instrument is created through the urgency procedure under section 45R – as 80 coronavirus-related SIs have been – the SI can come into legal force immediately, sometimes several hours prior to being laid before Parliament. Instruments remain in force unless either House fails to agree on a resolution approving the instrument within 28 days. If a resolution is not passed within the time limit, the instrument ceases to have effect (though this would not invalidate their legality during the ‘grace period’).
In essence, regulations created through section 45R can only be retrospectively withdrawn. No prior democratic scrutiny or consideration occurs before an instrument takes effect, no matter how controversial the instrument may be. This is also problematic, as Tom Hickman points out, since no objective measure of urgency is required for the procedure to be used. All that is required is that the instrument contains a declaration stipulating that person creating the regulations ‘is of the opinion’ that urgency necessitates the instrument’s immediate effect (without being ‘laid or approved’). Indeed, the urgency procedure has been used all too often to enact new and serious measures; such as the introduction of a nation-wide ‘Tier 4’ lockdown (SI 1611/2020) during the Christmas period.
In both the cases outlined below, the use of section 45R was inappropriate, but for different reasons. The first case concerns the ‘Face-covering Regulations’ (SI 791/2020). In this instance, the timeline indicates no real reason for urgency – the case for abuse is procedural. The second case concerns the ‘Home-confinement Regulations’, (SI 350/2020), which include far reaching restrictions – the case for abuse here concerns the instrument’s substance.
(1) The Face-covering Regulations
The Face-covering Regulations, SI 791/2020 took effect on 24 July, only a day after being laid before Parliament. These regulations should not have been enacted using the urgency procedure, since the government debated their introduction beforehand, and introduced equivalent measures into guidance on 14 July. This timeline indicates that there was no shortage of time; the regulations could have been introduced through the draft affirmative procedure.
(2) The Home Confinement Regulations
The use of the urgency procedure to enact SI 350/2020 was inappropriate due to the nature of the far-reaching restrictions imposed. This instrument contained, amongst others, the ‘Home Confinement Regulations’, which enforce the most drastic restrictions on normal life since the Second World War (prohibiting leaving home without a ‘reasonable excuse’). Yet, these regulations came into force immediately, an hour before being laid before Parliament.
Whilst there is an argument to say that the need for expediency justifies the use of urgency procedure, regulations are not the only way to fast-track law. The Coronavirus Act 2020’s swift passage within two days demonstrates that Parliament can legislate in haste during a crisis. Given the serious nature of these restrictions, they should have been placed on statutory footing in the Coronavirus Act 2020 (or even created through the ‘draft affirmative’ procedure).
Whether or not one agrees that restrictions over an entire population’s liberties are best placed on statutory footing, what is clear is that there were more appropriate powers at the government’s disposal. These include wider rule-making powers, subject to greater parliamentary review. Some experts have pointed out that the enabling powers in the Civil Contingencies Act 2004 are suited to imposing general restrictions and contain more opportunity for review. Section 27(3) of the Act sets out a parliamentary amendments process and parliamentary scrutiny of subsequent regulations ‘as soon as reasonably practicable’. However, given the government’s recent use of section 45R (and the PHA more generally) (SI 1611/2020), it is perhaps wishful thinking to expect the use of different delegated powers at this stage.
Lessons for the Future
Relying on the urgency procedure does away with any prior parliamentary scrutiny and amplifies the defective assignment of scrutiny procedures. This is but one issue amongst many, and it is generally agreed that scrutiny of delegated legislation requires comprehensive reform. An inquiry on the scale of the original Donoughmore Committee would be ideal; but this seems unlikely at present. With this in mind, the next section considers more incremental reforms.
(1) Short-term: Reforming the Assignment of Scrutiny Procedures
As a result of scrutiny procedures being determined by the Parent Act, instruments are often mis-assigned and valuable parliamentary time is wasted. Scrutiny procedures should not be determined by the enabling power. Procedures should be set after instruments are laid before Parliament and based on what they entail. The power to assign instruments could be outsourced to the Delegated Powers and Regulatory Reform Committee (‘DPRRC’), given their expertise, or a joint committee convened for a similar function. This would prevent serious regulations from slipping through the cracks of a less thorough procedure, and trivial regulations from being afforded unnecessary consideration.
(2) Long-Term: Variations of the ‘Super-Affirmative Procedure’
A long-term ‘fix’ cannot be offered without an in-depth evaluation of the entire system. But, as far as more serious reforms go, it is worth revisiting existing strengthened scrutiny procedures to devise a system whereby scrutiny is better calibrated to the relative significance of a piece of law. Parliament’s mechanisms for strengthened scrutiny are contained in 11 variations of the ‘super-affirmative’ procedure. These variations include opportunities for Parliament to upgrade levels of scrutiny and propose amendments to draft instruments, alongside other means of increasing dialogue over draft regulations.
Nevertheless, the super affirmative has hardly been used. As the DPRRC argued in 2012, its variations are overly complex. Measures from each variation should be reconsidered to develop a standard, simplified but scalable procedure for ‘strengthened scrutiny’. Most measures have two dimensions. The first dimension is purely parliamentary and relates to procedural requirements, like the duty to provide certain documents, the decision about what level of authorisation is required, and the capacity for dialogue between the two Houses and the government (which could lead to amendment or re-introduction). This could reach as far as the veto power in section 19 of the Localism Act 2011. The second dimension concerns the type of extra-parliamentary scrutiny conducted, and the institutional actors involved. This includes consultation duties and specified periods between publication and enactment to facilitate this.
Greater consultation duties are valuable, because they impose a more rigorous system of (ex-ante) parliamentary scrutiny and, they can provide a basis for a judicial review (ex-post). Regulations can be challenged for not having met a duty to consult (arising from statute, or common law). When successfully challenged, regulations can be quashed or declared unlawful. In fact, the first successful challenge of coronavirus-related regulations involved a failure to adequately comply with consultation duties. The Court of Appeal declared the Adoption and Children (Coronavirus) (Amendment) Regulations (SI 445/2020) unlawful – since the Secretary of State used these regulations to make ‘substantial and wide-ranging changes’ to care arrangements for around 78,000 children without sufficiently complying with consultation duties.
More generally, the case law challenging defective delegated legislation – for not complying with consultation duties or generally being ultra vires on procedural or substantives grounds – demonstrates that regulations would benefit from greater independent specialist scrutiny (of a legal nature, or otherwise). This could be facilitated by a statutory requirement for expert scrutiny. An example already exists: some regulations created under sections 172-174 of the Social Security Administration Act 1992 must be considered beforehand in draft by the Social Security Advisory Committee. This committee gives impartial detailed advice to the government, Parliament, and stakeholders before regulations take effect. This leads to better drafted law, as members of both Houses lack the knowledge and time for this level of inspection. Specialist support also makes MPs’ work on scrutiny committees easier and more meaningful.
Some might argue these measures are time-consuming and defeat the purpose of delegated legislation. There is an undeniable tension between legislating at speed and the need for detailed scrutiny. But where speed is of the essence, delegated legislation is neither the best nor only option. Parliament has consistently confirmed its ability to pass Acts in haste over Brexit. Conversely, delegated legislation requires a proportionate, targeted, scalable and properly resourced scrutiny process, which maximises the use of parliamentary and civil service time.
The inadequate scrutiny of Covid-related regulations has not gone unnoticed. The Speaker of the House of Commons declared the government’s use of delegated powers “totally unsatisfactory”. Despite the well-intentioned (though arguably unsuccessful) Brady amendment in September, promising ‘greater parliamentary involvement’ does not ensure meaningful scrutiny. Parliament should address long-standing flaws within the scrutiny system over regulations – like how scrutiny procedures are assigned. Assigning procedures at a later stage would ensure that the level of scrutiny corresponds to the substance and gravity of regulations. Outsourcing technical scrutiny to experts would improve the drafting of regulations and make better use of scarce parliamentary and civil service time. Finally, including a statutory duty to consult could strengthen executive accountability in parliamentary and judicial scrutiny. The solution then, is not ‘more parliamentary involvement’, but better, more carefully considered scrutiny practices.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
Tasneem Ghazi studied Politics, Philosophy and Law (LLB) at King’s College London and is completing an MA in Contemporary History and Politics.
All errors and omissions are the author’s own. The author wishes to thank Andrew Blick, Paul Evans, Jeremy Letwin and Alex Walker for their helpful comments.