Last night Lord Judge - a former Lord Chief Justice - gave a rousing and widely reported Annual Lecture for the Bingham Centre for the Rule of Law. He focused on the role of Parliament as our Legislature and the increasing amount of legislation passed without scrutiny or clear legal purpose beyond propaganda.
Parliamentarians and politicians alike would do well to consider his deep concern about the implications of Brexit for the continued diminution of the role of Parliament. Despite the Brexiteer arguments for leaving the European Union as a vehicle for Parliament to "take back control" of our domestic legislative destiny, Lord Judge regretted that recent Parliamentary practice gave him no cause for comfort.
Parliamentary scrutiny of legislation has become increasingly ineffective for a range of reasons. From the use of "Christmas tree" bills too weighty for the Parliamentary time available to the increasing use of Henry VIII powers to empower to the Executive to alter primary legislation free from close oversight, Lord Judge considered the shrinking capacity for effective ownership of our law by Parliament.
While the number of bills produced has little changed, usually around 50 a year, the volume of legislation produced annually has steadily increased to around 3,000 pages of primary legislation and 13,000 pages in statutory instruments. Lord Judge fairly asks "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?” He notes that the House of Commons has not refused to approve a statutory instrument since 1979, the House of Lords having refused six since 1968.
The weight of responsibility for scrutiny weighs hard on Parliamentarians. The workload has increased and the time available for the scrutiny of important legislation is short. Human rights restricting measures are not necessarily given special treatment, although they might garner particular attention. The Joint Committee on Human Rights has consistently criticised the limited time allowed for effective scrutiny of "Christmas tree" bills; the overuse of delegated legislation to restrict rights, and the use of other devices to constrain scrutiny, such as the late publication of Government amendments to legislation (see for example, reporting on the Coroners and Justice Bill 2009, at para 1.1).
However, as Lord Judge predicts, the process of Brexit will only put Parliament under greater pressure of time and resource (see below), creating a "legislative tsunami" of a kind unknown.
The Government has, of course, proposed to address this concern in the introduction of a Great Repeal Bill. This appears a little of a misnomer, as it is not so much a provision to deal with repeal, but to create a framework for the reshaping of the law post-Brexit through secondary legislation:
"The Great Repeal Bill will create a power to correct the statute book where necessary, to rectify problems occurring as a consequence of leaving the EU. This will be done by secondary legislation" (Great Repeal White Paper, para 1.15; see also Mapping the Great Repeal, October 2016, paras 133 - 141).
To guard against the further restriction of Parliament's crucial constitutional function will require vigilance both by the institution and by individual Parliamentarians across the political spectrum.
While the Great Repeal Bill might be sold as a measure to preserve Parliamentary efficiency, it appears to have at its heart a deeply worrying and widespread delegation of responsibility from the Legislature to the Executive.
One of the first challenges for the newly minted Parliament post-election may just be to consider just how much power it is willing to grant to the Executive in the brave new world post-Brexit.
Unfortunately, this is likely to be a test of constitutional mettle significantly influenced by the size of the Government majority in the House of Commons and the ability of the House of Lords to continue to effectively scrutinise legislation with potentially damaging constitutional implications.
If one of the first acts of the 2017-18 Parliament is to approve the wholesale delegation of power for the creation of the post-Brexit legislative settlement, this would be a significant abrogation of constitutional responsibility.
It may set a precedent for the scope of delegated power which may change the nature of our constitutional settlement irreparably.
Not so much "taking back control", but being encouraged to sign it away willingly.
“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”