Brexit may cost MPs and peers the power to pass laws, says former judge

Owen Bowcott Legal affairs correspondent
Lord Judge says parliament is failing to scrutinise legislation in detail amid reliance on ‘Henry VIII powers’. Photograph: Rex/Shutterstock

The “legislative tsunami” unleashed by Brexit will deliver the “greatest challenge” in history to the integrity of parliament’s procedures, a former lord chief justice has said. Lord Judge raised his concerns that by the time Brexit is completed and the “great repeal bill” enacted, MPs and peers will have effectively given away their powers to pass laws.

Speaking at the Bingham Centre in London, the former judge said parliament was failing to scrutinise legislation in detail. The crossbench peer drew attention to the increasing reliance on secondary legislation and “Henry VIII powers” – laws allowing ministers to change primary legislation (government bills) using secondary legislation (orders that go through parliament with little or no scrutiny).

Brexit would test to destruction the way in which the Houses of Commons and Lords operate, Judge suggested. Although the number of bills passed has remained relatively steady at about 50 a year, their sections and schedules had become longer.

During the past few years, about 3,000 pages of primary legislation have been produced annually, as well as another 13,000 or so pages of delegated legislation.

The productivity was wonderful, Judge said, “but there is a deeper question. How much of this lawmaking, whether by primary or delegated legislation, has actually been read, let alone scrutinised, by how many of us in parliament in advance of the enactment coming into force?”

The government, he said, should be held to account for its actions and policies, as well as for the “laws it seeks to enact to implement its policies and legitimise its actions”.

Turning to Britain’s withdrawal from the EU, Judge said: “The legislative journey through Brexit may reinforce the pernicious habits of political lifetimes … My main concern is that by the time the Brexit process has finished its parliamentary journey, we shall have irremediably cemented lawmaking by unscrutinised legislation into our constitutional arrangements”.

Parliament “faces a legislative tsunami, as the process of Brexit offers the greatest challenge ever faced by our legislative processes”, he said.

Judge said lawmaking was often exploited for other purposes by the government of the day. “Legislation is an entirely inappropriate vehicle for government propaganda. Moreover, the more time spent on propaganda, the less time there is for scrutinising what I might call real legislation,” he added.

He warned that so-called Christmas tree bills “festooned with multiple, miscellaneous, potentially controversial provisions, with no apparent connection with the title of the bill … can escape scrutiny in the Commons”, and spoke of the risks of “skeleton bills”, in which important powers are contained in regulations subsequently drafted by ministers.

“Now here we are, with a parliament based on universal suffrage, conceding to the executive the power to overrule primary legislation, and we do so habitually,” he said. “All this is constitutional … Yet what Henry VIII could not get from his normally subservient parliament, we now grant.”

The last time the Commons rejected a piece of secondary legislation was in 1979, Judge said. “At least the Lords has rejected six such instruments since 1968,” he added.

MPs are weighed down by constituency responsibilities and other public expectations and a long-term strategy is needed “to re-establish effective parliamentary scrutiny of its own legislation,” Judge said.

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