David Renton explores the concerning and increasing number of laws made by ministers, circumventing the scrutiny of Parliament, during the Coronavirus crisis and Brexit

Speaking in the House of Commons this month, Boris Johnson apologised for the fixed-penalty notice he had received for breaching Coronavirus lockdown rules. Explaining how he had come to be fined, the Prime Minister said that “it did not occur to me then or subsequently, that a gathering in the Cabinet Room… could amount to a breach of the rules”.

His excuse was met with widespread scepticism, but it is worth taking it seriously as it sheds light on how the business of government has been conducted during the COVID-19 crisis and Brexit.

Johnson is right to say that the Coronavirus rules were complicated, chaotic and hard to understand. Polls show that only 13% of people surveyed said they “fully understood” the rules. Part of the reason for this could be that the rules were being made by ministers – without the usual scrutiny of Parliament before they were passed.

Between March 2020 and January 2021, the Government introduced 66 sets of Coronavirus regulations. All of these documents were lengthy, some were complicated. Together, they constituted a constantly-changing regime of thousands of pages of law. 

In the UK’s unwritten constitution, in principle, only Parliament can legislate to create a criminal offence; and any criminal offence must be both accessible – so an individual can know from the wording of the law how they could break it. During the pandemic, both of these conventions were ignored. Ministers made laws themselves, relying on the Crown’s unlimited power to make regulations, in a way no peacetime government has done in centuries. 

The regulations and guidance published by civil servants repeatedly diverged. Ministers stopped addressing Parliament at all, instead providing briefings to the press – quite a few of them intending to justify seeming breaches of the law, whether by senior government advisors such as Dominic Cummings, or by ministers, including Johnson himself.

The practice of making criminal laws through secondary legislation offends deeply-held constitutional principles going back to the 1640s, and the principle of the separation of powers. Parliamentary sovereignty is based on the premise that if ministers are able to make up rules just as they please, they will do so recklessly and thoughtlessly.

It was under the Conservative-Liberal Democrat Coalition Government that the first tentative move were made towards ministers replacing Parliament as the author of the most contentious rules. The 2010 decision to increase university tuition fees to £9,000 a year was achieved through secondary legislation, at a time when there was no clear parliamentary majority in favour of the rise, and its sustained discussion had the potential to tear apart that government. 

But what in 2010 was a piece of opportunism has since become routine – particularly under Boris Johnson’s administration. The two judicial reviews, brought by the businesswoman Gina Miller, were both about attempts to let ministers take decisions on matters of primary importance. First, that ministers not Parliament should trigger Article 50 to trigger the UK’s withdrawal from the EU; and secondly, that ministers could prorogue Parliament to conduct Brexit negotiations with the EU without its interference.

Both of those attempts were found to be unlawful by the UK’s Supreme Court. Yet, rather than be troubled by those defeats, the creation of legislation outside of parliamentary scrutiny has continued. The Brexit legislation, for instance, repeatedly made use of ‘Henry VIII powers’ that enabled ministers to amend even primary legislation as they saw fit.

This continues with bills which are before Parliament now. If laws are made without scrutiny, the danger is that they will be made in a heavy-handed and authoritarian way. The Police, Crime, Sentencing and Courts Bill is one such piece of legislation – which includes giving the Home Secretary the powers to decide what level of disruption would enable a protest to be banned. 

Leaving the Coronavirus rules to ministers meant that laws came into being which were poorly understood and had discriminatory consequences. A 2020 survey by the Crown Prosecution Service found that every one of the 232 charges made under the Coronavirus Act had been wrongly brought. Young black and Asian men were twice as likely to receive fixed penalty notices for supposed COVID breaches as their white counterparts.

The Prime Minister claims that the Coronavirus rules were so complex and difficult to understand that he should be forgiven breaching them. To which the short answer is: yes, the rules were badly drafted – but who wrote them?

David Renton is a campaigner and barrister. His latest book, ‘Against the Law: Why Justice Requires Fewer Laws and a Smaller State’, is published by Repeater in July

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