Written by David Campbel
David Campbell is a Professor of Law in the Lancaster University School of Law. He has taught at a number of British universities and in Australia, Hong Kong, Japan, New Zealand, Spain and the USA. He is a fellow of the Chartered Institute of Abritrators.
Many MPs and members of the House of Lords of all political affiliations who wished, and perhaps still wish, to remain in the EU have signalled their intent to determinedly oppose the progress of the EU (Withdrawal) Bill through Parliament. Prominent amongst these are Sir Keir Starmer, the Labour Shadow Secretary for Exiting the EU and Dominic Grieve QC, the former Conservative Attorney General. It is only very recently that, if I understand what he has said correctly, Sir Keir has made clear his Party’s intention to whip opposition to the entire Bill. Previously, the Labour Party and their allies in other parties had been very evasive about whether they opposed the Bill in this way. But all these MPs and Lords have for some time made it clear that they intend to propose an enormous number of amendments to that Bill.
A justification which has been given for opposing the Bill is that its second purpose will be given effect by a very extensive delegation of powers of secondary legislation to various branches of government, and in particular by a use of Henry VIII clauses. As Rachel Sylvester put it in a recent article in The Times, this would be a ‘power-grab by Ministers’ which shows the falsity of the ‘myth’ that leaving the EU would allow the British electorate to ‘take back control’ of its laws. Secondary legislation, she tells us, is ‘legislation that can be introduced without a House of Commons vote’, and by its use, ‘without Parliamentary scrutiny’, ‘ministers will be able to force through… changes to the way the country is governed with no way for MPs to hold them to account’.
Sylvester conveys the view of a group of Remainer Conservative MPs that ‘there could be about 9,000’ acts of secondary legislation involved; by any standard a huge number. I wish to make no cheap point when I say that this view is somewhat ignorant of the procedure for Parliamentary scrutiny of secondary legislation. Nevertheless, her concern should be shared, not only by Remainers, but by those wishing to leave. But there is a shocking hypocrisy about this concern as she expresses it, and if lack of understanding to some extent excuses her, surely this excuse cannot assist Mr Grieve or even Sir Kier.
She is of course right in the sense that it will be absolutely impossible to carry out the necessarily enormous legal changes without wholescale recourse to secondary legislation. But one is struck by the figure of 9,000. This figure may be right, but pointing to its size alone cannot justify calling the use of secondary legislation into question. For this to mean ‘less democracy than before’, as she claims, it would be necessary to demonstrate that the previous legislation to be affected by the new secondary legislation had some superior democratic legitimacy. Her case seems to rest on the belief that the previous legislation had undergone what she understands to be proper Parliamentary scrutiny, i.e. it was passed as Acts of Parliament.
It is not so much that this is not the case as it is that believing this is ridiculous. It is neither remotely desirable nor remotely possible that Parliament could debate such an amount of primary legislation. It must be recognised that the law which is to be affected by the Withdrawal Bill was itself overwhelmingly brought into force as secondary legislation. The Bill will merely go some way to reversing this process.
Section 2(1) of the European Communities Act 1972 was a measure unknown in the previous history of the modern British constitution, making provision for the legislation of a body other than Parliament, the EU, to have direct effect in the UK. Section 2(2) makes provision for the detailed implementation of EU law by secondary legislation. In a way upon which I cannot improve, this has recently been described by an outstanding authority on the legislative process as ‘a notoriously broad power’. That authority concedes, however, that ‘the breadth of the provision was as inevitable as it is notorious’ because to effect the necessary legislative changes to UK domestic law by primary legislation ‘was simply unthinkable’.
It is similarly unthinkable that the process can be reversed in any way other than by a similarly broad use of secondary legislation. The hypocrisy of those who properly understand the legal position when they complain about the Withdrawal Bill’s enabling powers as if they were something new is breathtaking. What is new is their complaint about a situation with which they have been happy enough in the past. This complaint is bound to mislead the general public.
It is demonstrably wrong to say that Ministers can ever pass secondary legislation ‘with no way for MPs to hold them to account’. Though not, of course, passed in the same way as primary legislation, secondary legislation is subject to procedures which, in varying ways, give Parliament an opportunity to scrutinise it. If one focussed only on the vanishingly small number of occasions when these procedures have been used actually to annul secondary legislation, one would conclude that those procedures are not even gestural. But around these procedures there have developed conventions about committee and public involvement that amount to a system of scrutiny, and one which it would be quite wrong to regard as negligible.
But though not negligible, ‘system’ may be too strong a word to use in connection with these procedures and conventions, for I must make clear my own opinion that they are seriously deficient. The modern history of secondary legislation is of its immense growth under Parliamentary scrutiny which it is far too generous to describe as inadequate. The crucial points, however, are that it is Parliament that has passed the primary legislation which enables secondary legislation and it is Parliament which has not troubled itself with proper scrutiny of what it has done. In essence, as a very important aspect of the UK political class’s naïve belief in the beneficence of Government action, Parliament has long given Government enormous powers with insufficient regard to accountability and legality when doing so.
That class has, in the terminology of the academic discussion of these matters, given ‘output’ legitimacy such a priority as to very seriously denigrate ‘input’ legitimacy. It would be foolish to maintain that modern Government can be conducted on the basis of primary legislation alone. But this does not justify the way that Parliament has, in a strong sense, abandoned its own responsibility for secondary legislation, for it could readily have done otherwise if it had given accountability and legality greater weight in its procedures.
The European Communities Act 1972 took this process to the apogee, or nadir, of actual self-abandonment of Parliamentary sovereignty. By passing this Act, Parliament agreed to make itself legally subject to the legislative programme of a body outside the UK and, in section 2(2) of that Act, granted huge powers of secondary legislation in order to implement that programme domestically, about which the UK, subject to the legal sovereignty of the EU, ultimately had no choice. The result has been a deluge of secondary legislation ultimately implementing law which it would be the merest affectation to claim enjoys input legitimacy, for the EU is a system of output legitimacy. It is incidental to the argument that, of course, the quality of EU outputs has been such that this has played its part in the UK’s decision to leave, or that the entire lesson of democracy is that output legitimacy ultimately depends on input legitimacy.
Though it will certainly involve the passage of wide-ranging enabling legislation, starting with the Withdrawal Bill itself, repeal of the European Communities Act therefore indeed is a necessary condition of ‘taking back control’. But Sylvester is right to see that there is something inadequate about this idea, powerful though it is. In the end, it is the UK Parliament that abandoned sovereignty of Parliament, and, if leaving the EU is a necessary condition of restoring sovereignty, it is not a sufficient condition. Whilst it would be wholly inappropriate to expect the Withdrawal Bill, or other parts of the process of leaving, to repair the defects of input legitimacy of UK politics, that Bill would be a good place to start. Every care should be taken to ensure that, within the limits of what is practically possible, that process, including the use of secondary legislation, is open and accountable.
There are, in fact, good grounds to hope that this will be the case. In the end, it is lack of public interest that has allowed Parliament and Government to behave in the way they have. But the process of leaving the EU will be the focus of intense public interest. A responsible political class could seek to draw on that interest to set a new course for British legislative procedure. Attention might profitably be paid to the European Communities Act, which made special provisions for scrutiny which have not amounted to much and upon which it would be instructive to seek to improve.
But, unfortunately, setting this course is the last thing that can be expected of that part of that class that does not wish to engage constructively with the process of leaving but rather wishes to frustrate that process. In their argument about the proposed use of secondary legislation as part of that process, they are employing an argument of a really rather distasteful hypocrisy which denies the regrettable history of legislative procedure, of which the European Communities Act is a central feature, which has made setting a new course so desirable.