Statutory Instruments - should they be amended?

Statutory instruments are regulations, orders or rules, which have the force of law.   They are made by a Minister, or sometimes by some other committee or body, in accordance with powers granted by an Act of Parliament.   Many Acts confer powers to make statutory instruments for purposes specified in the Act.   The powers to make statutory instruments are often very widely defined, and in some cases statutory instruments can even be used to repeal or amend Acts of Parliament: so-called “Henry VIII” powers

The most important and widely drawn “Henry VIII” power is that contained in the European Communities Act 1972, which permits ministers and a range of other bodies to make regulations making “any such provision as may be made by Act of Parliament”.   Regulations under this section can and regularly do repeal or amend Acts of Parliament, and may be made for the purpose of implementing EC obligations or “for the purpose of dealing with matters arising out of or related to any such obligation.”

Almost all the directives emanating from the European Union have to be converted into Statutory Instruments in the United Kingdom.

The key weakness of Statutory Instruments is that while each House can vote down a Statutory Instrument as a whole, there is no power to amend it.   Rejecting the whole instrument is a drastic remedy if the objection is to parts of it.   The fact that they cannot be amended in Parliament is one of the reasons, which at present make them so attractive to the Whitehall machine, and yet scrutiny of these Instruments is essential.   The key reform is:

                Statutory Instruments should be capable of amendment by Parliament.

 

Conflict of interest

In an article in The Guardian on 27 June 2007 Marcel Berlin wrote:

“The office of attorney general contains an inherent inescapable flaw; a potential conflict of interest between the two hats that come with the job….Under one hat, the attorney general is a political animal, appointed by the party in power and owing allegiance to its policies.   He’s also the government’s legal advisor and although not a member of the cabinet, can be invited to attend meetings…Yet the same insider, wearing the other hat, is expected to make decisions over a whole range of issues (especially criminal prosecutions) as an independent lawyer, taking into account the public interest, with no thought of how they would affect government policy or colleagues.”

  This is an untenable position and one way or another, the conflict should be resolved.

Major public appointments

When the political party in power also has a large majority in the House of Commons, the power of the Prime Minister is almost unlimited.   Why should one person be able to exercise so much power?   If Parliament fails to be the centre of democratic legitimacy its main function has been lost.   Only parliamentarians themselves can re-assert this function.   If they fail then the decline of parliament is inevitable.   They could begin to reverse this decline by insisting that the heads of executive agencies and Quangos and many other public bodies should be confirmed in their jobs by parliamentary committees.   Those confirmed should only continue to hold the positions subject to parliamentary approval.

 This is done in many other countries including the United States of America.

                Major public appointments should be confirmed in their jobs by parliamentary committees, and hold them subject to parliamentary approval.

               

Fixed Terms for Prime Minister

Now that we have fixed terms for parliament, perhaps we should consider having a maximum fixed term for the Prime Minister.   Two terms of parliament, i.e ten years should be the maximum.   If this had been in place for Margaret Thatcher she would have avoided her humiliating dismissal.

The Prime Minister should not serve for more than two consecutive parliaments.

The patronage of the Prime Minister

A major fault in our democracy relates to the way we are governed.   Under our constitution our Prime Minister uses the powers of the Royal Prerogative to exercise power.   The House of Commons could and should hold the Prime Minister accountable but continuously fails to do so, perhaps because the Prime Minister exercises great power of patronage.   The Prime Minister appoints the Government Whips.   For MPs, promotion, position, overseas trips, appointments to outside bodies, all, effectively rest in the hand of the Prime Minister.

The powers of the Prime Minister should be set out in writing and where appropriate placed on a statutory footing.