Legislators should legislate; governments should govern
As Britain’s best-known classicist, Boris Johnson, should know, the verb govern comes from the Latin gubernatori—what the helmsman does in taking the ship towards its intended destination. In this case, steering the ship of state. The state, of course, has three branches: parliament (the legislators), the judiciary and the government (the executive). The helmsman does not make the rules; the captain (i.e. Parliament) does. He sets and maintains direction, rather than running around the ship trying to fix whatever he thinks needs fixing.
The trouble with power is that it is addictive: instead of sticking to governing, the party in power fiddles with legislation (as has been especially apparent during the Covid pandemic) and tries to manage the many activities it should leave to others. Government would perform better if it focused on governing. As Lord Udny-Lister, now the PM’s Chief of Staff, once put it “If I'm to do the job properly, I've got to understand it, how it [in this case government] works, what makes it tick.”[1]
Lord Sumption has reminded us that government has no power beyond that prescribed in law. In practice, however, the distinction between the powers of government and parliament has become murky. Primary legislation is solely a matter for parliament but government has acquired excessive control over the Commons’ time availability and agenda.
Secondary legislation—statutory instruments (“SIs”)—are created by ministers, not MPs. A Commons Library briefing summarised their scale: “An average of 2,100 UK SIs were issued annually from the 1950s to around 1990. This then rose to an annual average of 3,200 in the 1990s, 4,200 in the 2000s, and fell to around 3,000 a year on average during the 2010s (to June 2019).” According to the Hansard Society, only 0.01% (11) were rejected between 1950 and 2017. The number of SIs has declined sharply since 2015: only 757 were laid before parliament in 2015/6, the lowest number in 20 years, yet they still comprised 7,783 pages of legislation. A few MPs spent a total of less than eight hours debating them, an average of four seconds per page, and then waved them all through.
If our legislators are so ignorant of their own laws, how can the rest of us be expected to know them? A law is useful only if those who are supposed to obey it are aware of it. The world’s oldest surviving parliament is not Westminster but Iceland’s Althing, founded in 930. As there were no written records, each session of the Althing began with the speaker reciting, from memory, all Iceland’s statutes. Any laws he forgot were no longer laws. This seems an excellent precedent.
Although excessive regulation is usually blamed on the EU, the House of Commons Library estimated that an average of only 13.2% of SIs, passed between 1993 and 2014, were EU-related. Nor are all SIs trivial: secondary legislation can be used to amend primary legislation. Around 20% of SIs are significant enough to require impact assessments on how they are expected to impact the private or voluntary sectors and the economy in general—providing a more realistic picture of the legislation decided by government.
From a high of 664 in 2011, the number of impact assessments steadily dropped to 170 by 2017. Alok Sharma’s Business, Energy & Industrial Strategy department deserves credit for that. Impact Assessments began about 20 years ago following the publicity given, notably by the British Chambers of Commerce, to over-regulation which was thought, in 1997, to be costing about £100bn pa or 10% of GDP. Regulation was critically reviewed by the Commons Regulatory Reform Committee in 2008 with 29 recommendations, including closer scrutiny by parliament.
The logic of legislators legislating and government governing leads to the conclusion that SIs should be replaced by four categories:
“Regulations,” accompanied by impact assessments, should be scrutinised, amended and decided by committees in both Houses when the private or voluntary sector is affected. The 29 recommendations of the 2008 Commons Regulatory Reform Committee should be reconsidered. Example: The Ionising Radiation Regulations SI 201/1075.[12]
“Legal amendments” of no impact on, or interest to, the general public or, probably, government, should be scrutinised, amended and decided by a specialist committee of the House of Lords only. Examples: Crown Court Amendment Rules SI 2017/1287, The Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 SI 2017/1285
“Local bye laws”, such as temporary road closures, flights over Edinburgh during Hogmanay (SI 2017/1299) and transferring small funds between Church of England schools (SI 2017/1294), should be devolved to local authorities.
The remaining SIs which should not be legislated at all, e.g. exhorting one government department to work with another, are matters for government, not parliament.
The role of legislators should also concern our Attorney General, Suella Braverman, but what about the rest of government? Clearly it should decide policies and use current law, guidance and the taxpayers’ money to bring them about. Using funding to influence behaviour makes sense but it needs to sharpen up its approach to guidance. The Department for Health and Social Care sprays out about 2,000 bulletins a year, a mix of guidance and “open government” with no targeting to the right people: one can either opt in and receive them all or opt out and receive none.
Neither is thought given to whether guidance is expressed in ways that would achieve compliance. Quite a few give the impression that they are legal instructions when they are not (or should not be). The guidance to care homes to keep people from seeing dying relatives is an example: “This supplements the legal position set out in the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020.” Care homes took it as instruction to keep visitors out but actually it was simply advice that care homes and families “should work together” to decide the right balance.
For clarity and effectiveness, government guidance should:
Indicate that it is advice, not instruction, where that is the case. If it is instruction, the relevant legal authority should be cited.
Be targeted at relevant members of the public. People with no weight problems do not need guidance on their calorie consumption. Press releases should just go to the media.
Understand, from the recipient’s point of view, how the guidance will be received and therefore its likelihood of changing behaviour.
Not be issued at all if it will not help achieve the desired policy outcomes. Bulletins, such as officials’ travel expenses, which we only need to know if they are improper, should be placed on departmental websites with open access but not circulated.
In short, as Michael Gove has said, “we surely know the machinery of government is no longer equal to the challenges of today.” The performance of both Parliament and government will be improved if the former does all the legislating and the latter sticks to setting policies and using current law, guidance and its income to achieve them.