In a recent working paper, the Hansard Society has laid out its preliminary proposals for an overhaul of the parliamentary Statutory Instrument (SI) procedure. The proposals would see all SIs laid in draft and sifted by a Parliamentary committee tasked with determining the level of scrutiny any given instrument should receive based on its content. This scrutiny would range from ministerial Q&As and formal debates within a permanent committee, to full debate in the Chamber. As the report emphasises, these reforms could go far in repairing the relationship between the executive and the legislature. But the reform of parliamentary SI procedure will also have implications for the judiciary, and the relationship between the courts and the executive in particular.
This post argues that improved parliamentary procedure could be an asset to judicial review, if accompanied by a greater willingness of both Parliament and the courts to hold the executive to account for its use of delegated legislative powers. There is a risk that if SI procedure is improved, the deferential attitude of courts to parliamentary procedure will lead to an even lower standard of judicial scrutiny when SIs are challenged. This would undermine the role of judicial review as a stopgap for when parliamentary scrutiny inevitably falls short. It would also overlook the potential in reform for the development of grounds of judicial review and the practice of interpretation.
Parliament and the courts share responsibility for checking the exercise of delegated powers. Better parliamentary scrutiny should not warrant reduced judicial oversight. Therefore, it is essential that any reforms to parliamentary procedure are also accompanied and supported by changes in parliamentary culture and judicial attitudes.
Current judicial practice and the risks of changing parliamentary SI procedure for effective judicial review
In Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39, Lord Sumption reiterated the basic principle that secondary legislation is judicially reviewable because the emphasis is on the decision of the Minister to exercise the power in the enabling Act and not Parliament’s approval of the instrument [43]. This is correct as a matter of constitutional principle: judicial oversight of delegated legislation does not violate parliamentary sovereignty because the subject of challenge is not Parliament’s decision to delegate a power, but whether the Minister is acting within legal limits when choosing to make an SI. In fact, as Lord Neuberger highlights in Public Law Project v Lord Chancellor[2016] UKSC 39, the supremacy of Parliament over the executive is upheld and the will of Parliament is enforced when the courts find that delegated legislation is ultra vires [23].
There is, however, a judicial reluctance to intervene where parliamentary procedure has been formally followed. The effect is that where SI procedure is considered, it is used to justify a lower intensity of scrutiny. Thus, after laying out the above principle, Lord Sumption in Bank Mellat proceeded to state that “Parliamentary scrutiny of general legislative measures made by ministers under statutory powers will often be enough to satisfy any requirement of procedural fairness” [44]. Instead, the court was primarily concerned with the extent to which the ground of judicial review (particularly rationality) overlapped with Parliament’s role, whether the instrument had widespread effect or was targeted at individuals, and whether it was based on general policy [44].
The High Court and Court of Appeal also appear to be erring on the side of excessive caution, as evidenced by cases on the implication of procedural fairness duties as a precondition to the introduction of SIs. The High Court in Manchester Airports Holdings Ltd v Secretary of State for Transport [2021] EWHC 2031, following the lead of the Court of Appeal in Delve v Secretary of State for Work and Pensions [2020] EWCA Civ 1199, held that where “secondary legislation is challenged on grounds of alleged procedural error not arising from any procedure prescribed in the enabling power in primary legislation, the common law will not ordinarily intervene to supplement the provision made in the primary legislation” [26].
There is hesitation to intervene even when judges have expressly recognised that the current parliamentary procedures are inadequate. Cases such as Public Law Project have acknowledged that despite their approval by Parliament, “draft statutory instruments, even those subject to the affirmative resolution procedure, are not subject to the same legislative scrutiny as bills” [22]. Particularly striking is BAPIO Action Ltd v Secretary of State for the Home Department [2007] EWCA Civ 1139, in which Maurice Kay LJ describes the negative resolution procedure as “often criticised” and the chances of interested parties to advance their cause through the procedure as “historically and realistically low” [58].
It is concerning that the narrowing of both the grounds and intensity of judicial review of SIs is being justified by reference to a constitutional fig leaf: the effectiveness of SI procedure. There is a risk that reforming SI procedure will provide an excuse to limit judicial scrutiny further unless two things occur. The first is that parliamentarians in government and opposition take their SI scrutiny function more seriously and produce high quality legislation that is less likely to be judicially reviewed. The second is that when SIs are still inevitably brought before the courts, judges accept that, as argued below, judicial scrutiny supplements and does not undermine parliamentary scrutiny of SIs.
Why reformed parliamentary procedures do not decrease the need for judicial scrutiny
There are a number of reasons why increased parliamentary scrutiny should not lead to reduced oversight by the courts. The first is that SIs can have significant effects on the rights of individuals. This can range from the creation of criminal offences to, as highlighted above, the consequences of introducing an SI for procedural fairness. In the case of the latter, when the courts imply a procedural duty as a precondition to the ministerial decision to exercise a SI-making power, they do not mean that Parliament prescribed the wrong parliamentary procedure – SI procedure is conceptually distinct from procedural fairness understood in terms of the rights of the individual. Instead, they reinforce the well-established principle that if Parliament wishes to undercut certain fundamental rights, it must do so expressly.
This leads on to the second reason, which is that judicial and parliamentary scrutiny perform fundamentally different functions. The interpretation of legislation and the determination of the legality of a decision to make a regulation by the courts is, or at least should be, intimately tied to the provision of a remedy for a wrong suffered by an individual or a group. Amongst fears that judicial review is becoming a substitute for the political process, it is important not to lose sight of the basic function that judicial checks on the political system play in guarding against the excesses of majoritarianism, particularly where these have unintended (or intended) adverse consequences for minorities. Better parliamentary procedure should be seen as a way to complement, and not diminish, this role.
Finally, judicial scrutiny will always be necessary as a backstop against imperfect parliamentary procedure. SIs will remain the remit of the executive as they are inherently a method of legislating by bypassing the lengthy scrutiny given to primary legislation. This is largely due to the sheer volume of SIs being laid, which increases the chance of instruments falling through the cracks of even a procedure as advanced as that proposed in the working paper. This is assuming that there is desire amongst Parliamentarians to take their responsibilities as, for example, committee members under the new system seriously. If this is not the case, then reduced scrutiny by the courts in response to formal changes to procedure could lead to a net loss in SI scrutiny.
The opportunities of reform for the courts
Not only does judicial scrutiny remain necessary in the face of reformed procedure, but the latter could actually enhance the judicial process. The primary advantage of a system that facilitates the effective scrutiny of SIs is justification for judicial deference to the political process. In those instances where the courts are inclined to give greater weight to the judgement of the executive, particularly in areas of economic and social policy and national security, they would no longer have to rely on the fiction that the negative and affirmative procedures as they currently exist subject SIs implementing those policies to sufficient parliamentary oversight. Instead, judges would be able to make more nuanced assessments of the degree of parliamentary scrutiny an issue has received when, for example, determining whether to upset the proportionality balance undertaken by the government.
Another advantage of reform for judicial scrutiny is in an area that the courts have already shown a growing amenability to, that is, the consideration of pre or extra legislative materials in relation to SIs. One of the proposals in the working paper is to incentivise the Government to consistently produce a higher standard of supporting documentation when laying instruments (Part 3B). In addition to the Explanatory Memoranda that ordinarily accompany SIs, documents that would be encouraged to be produced more regularly include Impact Assessments, reports from advisory bodies and the outcomes of consultations. This transparency in both data and reasoning would be an asset to the courts, who would be able to turn to readily available material when determining, for example as part of a proportionality analysis, whether a Minister had turned their mind to a particular issue. These materials also serve as an aid to construction. In O v Secretary of State for the Home Department [2022] UKSC 3, Lady Arden was optimistic about the ability of courts to find a “better-informed interpretation of a provision by reference to pre-legislative material which Parliament is more likely than not to have acted on” [66]. The availability of these materials could therefore bring statutory construction by the courts closer to a science than an art.
Conclusion
Scrutiny is not a zero-sum game between the courts on the one hand and Parliament on the other. Increased parliamentary scrutiny may produce higher quality secondary legislation and reduce the chances of challenge in the courts, but that should not in itself immunise SIs from review on substantive or procedural grounds.
This piece welcomes the Hansard Society’s comprehensive reforms to SI procedure and has provided a brief overview of the potential they hold for improving judicial scrutiny of delegated legislation. It has argued that this potential can only be realised if judicial oversight is seen as complementary to, and not competing with, parliamentary scrutiny. The overarching aim is to have delegated legislation that is brought into force and operates lawfully: neither Parliament nor the courts can achieve this alone.
Saba Shakil.
Saba Shakil is a researcher at the Public Law Project.
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.