The Brexit process, the pandemic and the approach of the Johnson Government have all tended towards Parliament's marginalisation and the accretion of executive power. For UK in a Changing Europe's report on the constitutional landscape, we show how – in the legislative process and control of public money and executive action, including delegated legislation.
Director , Hansard Society
Dr Ruth Fox
Director , Hansard Society
Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.
In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.
In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.
Senior Researcher, Hansard Society
Dr Brigid Fowler
Senior Researcher, Hansard Society
Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.
After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.
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The UK now has greater autonomy to make its own laws as it sees fit. Most interest is directed towards the substance of the UK’s new policy regimes, but the process by which the UK legislates is also under the spotlight.
One issue arising is the emergence of delegated legislation — regulations in the form of Statutory Instruments (SIs) — at the centre of often contentious political debates (a feature shared by the Brexit process and the pandemic). Delegated legislation will remain the principal legislative vehicle for delivering the government’s agenda in critical post-Brexit policy areas. New acts for immigration, the environment, agriculture, fisheries and customs are replete with delegated powers. The same applies to further bills yet to reach the statute book, including on borders and subsidies. Trade agreements will also require implementation partly via SIs, as will plans for regulatory reform.
Given the inadequacies of the SI scrutiny process, parliamentarians will struggle to discharge effective oversight of major changes in these areas.
However, some Brexit-era powers are also set to expire. In particular, the main delegated power in the EU (Withdrawal) Act 2018 (EU(W)A) — to legislate by regulations under section 8 to address ‘deficiencies’ in retained EU law — expires on 31 December 2022, two years after the end of the post-Brexit transition period. Whether the government seeks to secure an equivalent, replacement, power in some new or amended piece of primary legislation, or instead considers that it can achieve its legislative objectives without it, will make a significant difference to the way in which post-Brexit law is enacted.
The fate of the section 8 power may well become entangled in the wider question of the status and amendment of retained EU law. After Lord Frost announced a review of retained EU law in September 2021, the government confirmed at the end of January 2022 that it would use a piece of primary legislation — the ‘Brexit Freedoms Bill’ — to make retained EU law easier to amend or repeal. The suggestions from Lord Frost and Suella Braverman, the Attorney General, that this law has less or no democratic legitimacy than law initiated in the UK, and that it might be amended through some form of accelerated scrutiny process, raises concerns about possible further legal uncertainty and the continuing marginalisation of Parliament.
At Westminster, as in many other legislatures, the emergency nature of the pandemic eroded parliamentary controls over legislation and money.
Parliament was marginalised by Ministers’ habitual use of ‘urgent’ powers, predominantly those in the Public Health (Control of Disease) Act 1984. Twenty percent of the 555 pandemic-related SIs laid before Parliament by the end of 2020 used the ‘urgent’ power procedure, which requires only retrospective parliamentary approval.
But ministerial abuse of the concept of ‘urgency’ in the laying of regulations, and the government’s cavalier approach to their scrutiny, prompted a backlash among its own backbenchers. This culminated in a government with an 80-strong majority having in December 2021 to rely on Opposition votes to deliver vaccine passports, at the time a crucial plank in its pandemic management policy. Having previously taken advantage of the speed and convenience afforded them by urgent powers, ministers would now face a degree of political jeopardy from within their own party ranks, if they needed to exercise them in future.
The pandemic also exacerbated Parliament’s traditional weakness regarding control over public spending. Normally, a Contingencies Fund Bill uncontroversially provides a contingency limit of two per cent of public spending without prior parliamentary approval. The limit was raised to an extraordinary 50% by the Contingencies Fund Act 2020, and in 2021 only lowered to 12%. Via the Contingencies Fund Bill for 2022–23, it remains to be seen whether the limit is returned to two per cent or whether ministers try to retain the financial flexibility they acquired during the crisis.
Even away from Brexit and Covid-19, the accretion of power to the executive has been a strong theme of the government’s legislative activity, in terms of both substance and process. For example, the Dissolution and Calling of Parliament Bill proposes to reinstate prime ministerial control over early dissolution. The Elections Bill and the draft Online Safety Bill propose to establish considerable scope for ministerial direction of the work of the relevant regulators, the Electoral Commission and OFCOM, respectively.
Ministers seem little concerned that the broad powers they claim for themselves will remain on the statute book for use by governments of a different political complexion in future.
MPs, including on the government benches, have also complained about rushed legislation based on inadequate evidence. For example, the Health and Social Care Levy Bill received just one day’s scrutiny in each House, only six days after the policy it enacted had been announced. The Public Administration and Constitutional Affairs Committee — chaired by a Conservative MP — said the evidence base for the Elections Bill was so poor the measure should be paused.
The government’s legislative approach has led to record numbers of defeats in the House of Lords. Although ministers have sought to portray these as defiance of the elected House, they often build on, or provide a platform for, opposition by MPs.
The effect of the government’s legislative approach on its relations with its own backbenchers is set to be critically important in 2022. Accumulated unhappiness on his backbenches certainly provided Boris Johnson with little protection from the crisis that was engulfing his premiership at the beginning of the year. Relations with backbenchers might always have been strained, given the political complexities of the post-2019 parliamentary Conservative party — part-homecounties, part-‘Red-Wall’. Whether the government persists with its poor legislative and parliamentary management and its aversion to oversight will be critical to the future legislative as well as political landscape.