The term “regulations” conjures up images of the banal and technocratic, but—while there is certainly a grain of truth in that reputation—the regulations made in parliament are laws that impact every aspect of our society and economy, as well as our everyday lives. All of the lockdown restrictions during the pandemic have come in the form of regulations, and more than 400 Covid-19 regulations have so far been made. To ensure a legal black hole was not created by Brexit, no less than 622 regulations were made before Exit Day. Nor are they just for extraordinary times: our system of government has heavily leant on regulations in this way for over a century now. We all ought to be concerned with ensuring this part of our constitution works as well as possible.
Technically, regulations are laws made by the government under powers granted to it in existing acts of parliament—which are the highest form of law. The number of regulations made each year has increased significantly in recent decades–consistently running into the thousands and peaking at over 4,150 in 2001. By contrast, only a few handfuls of acts of parliament pass in a typical year. The contemporary reality is that the making of acts of parliament is something of a legislative sideshow. Increasingly, those few acts that are passed are “skeleton bills,” mostly made up of new powers for government to make even more regulations.
There is no inherent good or evil in regulations: their content is what matters. It is imperative, therefore, that they are subject to close and rigorous scrutiny—so that they can be considered, improved, and, where necessary, challenged and rejected. This, however, is far from the reality of the weak system of scrutiny in parliament.
Various constraints in parliament inhibit effective scrutiny of regulations. The vast majority are not debated at all. The government of the day has control over whether debates on many regulations occur, and over the membership of delegated legislation committees, which are intended to review regulations but are considered low prestige political work. When debates do occur, there is regularly insufficient time to afford them proper scrutiny—by way of example, the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 are 619 pages long and were debated in the Commons for 52 minutes and the Lords for 51 minutes. Regulations also face no meaningful prospect of defeat within parliament—only 17 have been rejected in the last 65 years, and none in the Commons since 1979.
During the pandemic, the dysfunction of the parliamentary scrutiny system has been on full display. Almost all of the more than 400 regulations have had little or no scrutiny. As we are all too aware, some of these regulations made profound interventions into our everyday lives, introducing new and significant criminal offences, and shutting down businesses. Regulations were often published just before (often minutes before) they came into force, even when plans had been in place for weeks. Debates, when they did occur, were not scheduled properly by the government—leading to a situation where some regulations were revoked or amended before the first version could be considered, in an end-of-session scramble to catch up on scrutiny work.
The courts also have a role in scrutinising regulations: when a claim is lodged, they can check if ministers have the power to make the regulations in question. If not, they can take steps to rectify the situation. This is controversial, but should not be: the courts are simply ensuring that acts of parliament are given primacy and government stays within the law. This is an embodiment of our constitutional commitment to parliamentary sovereignty. Yet, as part of a government programme seeking to “restore the balance of power between the executive, legislature and the courts,” reforms are now being consulted on by the Ministry of Justice which hold the potential to undermine the role of the courts in reviewing regulations.
One such proposal is that people who challenge regulations in the courts should only receive prospective remedies. To put this simply: if an unlawful regulation is made and successfully challenged by an individual, that person who brought the claim may be unable to get a remedy for harms they have already suffered as a result. This not only goes against the basic idea of providing an effective remedy for unlawful acts but, in many instances, will severely undermine the incentive to bring a case in the first place. Somewhat boldly—given the state of scrutiny in parliament—a central basis for such proposals is that “parliament focused solutions are more appropriate.”
Elsewhere, the Human Rights Act 1998 is also being reviewed by the government. The Ministry of Justice has set up an expert panel to do this job, led by Peter Gross. The panel is yet to report but there are already proposals from some quarters that regulations should not be subject to some of our main human rights laws. Richard Ekins, a professor of law at the University of Oxford who leads the Policy Exchange’s influential Judicial Power Project, has made precisely this suggestion, arguing that such a move would reduce “political litigation” that would “retrospectively… impugn the law-making choices of responsible authorities.”
We should be clear about what is being proposed here: that the overwhelming majority of the laws made in this country will be effectively taken outside of basic human rights protections. Even if sense could be made of this in principle (and that is a stretch), there is scant evidence to support the claims that the courts are guilty of the activist decision-making Ekins and others suggest. Despite this, such proposals have gained traction and we await the outcome of this panel’s review process.
There is nothing objectionable per se about rule by regulations, and a number of sensible improvements could be made to procedures in parliament that would improve the quality of regulations—the Hansard Society has been doing sterling work advocating for such improvements for many years. That’s where the focus ought to be; the courts, by virtue of their position, can only hope be a safety net for egregious failings. But, unfortunately, the possibility of earnest, incremental improvement to legislative procedures seems to have been overlooked, and the agenda that is forming instead risks diluting further our already thin systems of scrutiny. Each of us may have different views on what particular regulations should do and say, or whether there should be overall more or less of them. However, none of us will, in the long run, benefit from the seemingly emerging project to deregulate regulations. It’s vital that any such project is resisted.
