Government needs to end reliance on secondary legislation, warns ex-legal chief

Jonathan Jones calls for 'reset' of secondary-legislation rules and a new statutory instruments act
Sir Jonathan Jones Credit: Paul Heartfield for CSW

By Jim Dunton

14 Oct 2021

Former Government Legal Department head Sir Jonathan Jones has warned ministers that government's reliance on secondary legislation, forced by the twin pressures of Brexit and the coronavirus pandemic, needs to be brought to an end.

Jones, who quit government last year in protest at elements of the draft internal market bill, said that while rushing through new laws through the use of statutory instruments was unavoidable in the face of an emergency, it was still happening and did not lead to good law-making.

In a just-published blog for University College London’s Constitution Unit, Jones calls for a new statutory instruments act to regulate the use of secondary legislation, which makes use of powers contained in earlier acts of parliament and which can be introduced without the need for debate.

Jones, who is now a senior consultant at law firm Linklaters, said that that well over 600 statutory instruments were made to give effect to Brexit, mainly to ensure pre-existing EU law still worked afterwards. He said more than 500 statutory instruments had been introduced in response to the pandemic – including imposing lockdowns, travel restrictions and the closure of businesses.

Jones said there was “nothing inherently unconstitutional” about the use of secondary legislation, but cautioned that policy developed at speed and finalised at the last minute, with minimal consultation, tended to be less well thought-through and more inconsistent than it could be.

“Many Brexit and Covid-19 SIs received minimal or no parliamentary scrutiny,” he said. “Of the 500-plus Covid-19 SIs, only about 30 were debated in parliament before coming into force.”

Jones said that, as a result, MPs and peers had “little or no involvement” in the creation of some of the most of the most important laws affecting the country.

He added that the government’s plans to review “retained EU law” through what Cabinet Office minister of state Lord David Frost described to parliament as a “tailored mechanism” for “accelerating” its repeal or amendment was also a cause for  concern.

Jones said Frost’s proposals raised the spectre that ministers were once again looking to legislate at speed, with limited opportunity for parliamentary scrutiny, in a way that “ironically carries less democratic legitimacy than the system of EU law-making it is replacing”.

Strong case for a “reset” 

Jones said there was a “strong case for a reset of the use of secondary legislation” and the creation of a new statutory instruments act.

He said changes could include tighter scrutiny of the scope of powers, the purposes for which they are granted, and the parliamentary procedures that apply to how they are exercised.

“While there is no constitutional bright line between appropriate or inappropriate use of secondary legislation, it might be possible to articulate some high-level tests or assumptions,” Jones said.

“For example, that secondary legislation cannot be used to set ‘policies or principles’ but only for ‘administrative or regulatory’ purposes.”

He added that there was also a case for giving MPs and peers powers to amend some categories of statutory instrument, such as those imposing restrictions on individual rights and freedoms, or setting penalties over a certain level.

“I realise the government may not see this as a priority, or even as being in its own interests,” Jones said.

“But in the absence of such a reset, my fear is that the government – maybe any government – will persist in bad habits: in extracting from parliament ever wider powers, minimising scrutiny of their exercise, legislating essentially behind closed doors and at the last minute, leading to poorer, less transparent, less accessible, less accountable law-making.

“That would be very bad for democracy and the rule of law.”

The full blog can be read here.

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