Ministers accused of governing by ‘fiat’ by rushing through sweeping changes to the law without proper scrutiny
More than 90 pieces of coronavirus legislation have been pushed through Parliament without scrutiny, it has emerged, as ministers are accused of imposing sweeping restrictions by decree.
Senior Conservative MPs and Parliamentary experts have warned that the Government is rushing through laws, regulations and powers without proper accountability.
Secondary or ‘delegated’ legislation – which allows ministers to make minor tweaks to laws using existing powers conferred to them under Acts of Parliament – usually comes into force without MPs’ approval.
However, there are mounting concerns that major lockdown changes affecting people’s everyday lives are increasingly being pushed through using this route without any scrutiny or challenge.
Examples include the Government’s controversial 14-day travel quarantine, changes to statutory sick pay, and a six-month exemption on MOTs, through to more minor tweaks such as temporarily halting the 10p charge for carrier bags used in home grocery deliveries.
Urging the Government to change course, the Tory MP Steve Baker – a former Brexit minister – told The Telegraph: “Delegated legislation – that is, the power to make rules by ministerial fiat – has always been the enemy of transparent and accountable government.
“Coronavirus has massively, dramatically, rolled forward the state and with it the use of unaccountable power by ministers. For those who follow these issues, that was entirely to be expected – but that doesn’t make it a good thing.
“I am confident if the British public understood how power has been wielded through ministerial fiat, they would instantly demand change.”
According to the Hansard Society, 91 out of the 102 coronavirus-related statutory instruments (SIs)- legislation which enables the Government to add to or alter laws – have been passed using the “negative” procedure.
This means that they are only laid before Parliament after being made law by a minister, and can only be annulled or revoked if either MPs or peers pass a motion objecting to it within 40 days.
Eight further SIs were passed using the “urgent” or “made affirmative” procedure, meaning they need to be approved by Parliament within 28 to 40 days or they are revoked.
The most controversial change pushed through recently using the negative procedure is the travel quarantine implemented earlier this month, which requires all travellers arriving into the UK to self-isolate for 14 days.
The regulations, which have provoked outcry among business leaders and the aviation industry, would likely have resulted in a significant rebellion by Tory backbench MPs had the Government sought to introduce them in primary legislation.
While some MPs will argue the Government needed to be pushed through legislation rapidly due to the severity of the crisis, critics point out that emergency powers were initially debated and amended during the passage of the Coronavirus Bill in March.
‘Democratic accountability at stake’
Speaking to The Telegraph, Raphael Hogarth, an associate at the Institute for Government think tank, argued that many of the regulations pushed through using secondary legislation could have been put before Parliament.
“In a parliamentary democracy big changes to the law are made using primary legislation and small changes can be made to secondary legislation. But even if they are important, they go before Parliament,” he added.
“You normally expect secondary legislation and the negative procedure to be used for boring stuff.
“Nobody could call the lockdown regulations technical or obscure. The lockdown regulations are the biggest interference with liberty that anyone now can remember.
“Parliament at the time the lockdown was announced was passing and scrutinising primary legislation on this subject and doing a pretty good job of it.
“The Coronavirus Act was passed at breakneck speed, but nevertheless, parliamentarians raised some concerns over things such as religious burials and the review period, and the Government introduced amendments and made changes.
“If MPs had had the opportunity, they might have done an impressive job or scrutinising the lockdown regulations as well.”
Mr Hogarth added that as the lockdown continued to ease, the continued use of secondary legislation to force through major changes was a growing cause for concern.
“There’s an important point of democratic accountability at stake,” he continued.
“Whilst it’s understandable for the Government to lean on secondary legislation in a moment of absolute emergency, the closer we get to business as usual, the more constitutionally alarming that is.”