Is government by executive order a plausible model for the UK?

Senior members of Reform UK are reported as saying that an incoming Reform UK government would seek to make change via ‘executive orders’ rather than legislation, where possible. The model is no doubt that of the USA, where President Trump has made sweeping changes by executive order without involving congress.

Is this a plausible model for government in the UK?

The UK does not have a concept of “executive orders” in the same way as the US. But UK government ministers do have extensive legal powers, many of which are exercisable with no or minimal involvement by parliament. 

There are two main categories of executive power in the UK

Secondary legislation

Most government powers are conferred by parliament in primary legislation, i.e. Acts of Parliament. The range of such powers is vast – to establish bodies of various kinds; make appointments; set and pay grants, benefits and all sorts of other payments; authorise, control or prohibit various kinds of activity by businesses or citizens; take measures in the event of a public emergency, and much more.

In many cases, the power is exercisable by a minister making regulations in the form of a statutory instrument – secondary legislation. The scope of the power, and the purposes for which it can be used, will be set in the relevant Act of Parliament, as will the process which must be followed before an instrument can come into force.

Roughly 3,500 statutory instruments are made each year on average. The vast majority of those are subject to the “negative resolution” procedure, which means an instrument comes into force unless either house of parliament votes against it – an exceedingly rare event. Another, much smaller, category are subject to the “affirmative resolution” procedure, which requires both houses to approve the instrument after a (normally short) debate. Either way, the level of parliamentary scrutiny over secondary legislation is very limited, and often non-existent.

The scope of such powers will be limited by the original Act which provides for them. However, they can still be very wide. Some allow ministers to make changes to primary legislation itself – so-called Henry VIII powers. There has been growing criticism over many years of the tendency to confer ever wider powers on ministers. Two reports of the House of Lords Secondary Legislation Scrutiny Committee in 2021 criticised what it called "Government by Diktat" and concluded that the over-use of secondary legislation amounted to "Democracy Denied".

The making of secondary legislation is subject to review by the courts, which may strike down an instrument if it falls outside the scope of the powers conferred by parliament, breaches the Convention rights set out in the Human Rights Act 1998, or is made in a way which is seriously procedurally flawed.

The prerogative

The other main source of executive power is the royal prerogative – historic constitutional powers of the crown, now exercisable by (or strictly by the King on the advice of) the prime minister. These include the power to declare war or deploy the armed forces, make international treaties, make decisions about the organisation of the civil service, make certain appointments – including to the House of Lords – and grant honours.

The exercise of prerogative powers does not usually entail the making of secondary legislation, nor require the involvement or endorsement of parliament (unless the government so chooses for political reasons). However parliament can, by primary legislation, remove a given prerogative power or subject it to limits or conditions, and has done so in some instances (e.g. in relation to the civil service and treaty-making procedures).

Could a government give itself even more powers by passing an “enabling act”? 

The term "enabling act" has ominous overtones, usually being taken to refer to the 1933 Enabling Act passed by the German Reichstag to confer sweeping powers on Hitler’s government.

In the UK constitution, parliament is sovereign and – in theory at least – can pass any law it wishes. That could include – again in theory – very wide, perhaps even unlimited, powers for the government to act without further reference to parliament.

There would be practical and political constraints. Any such “enabling Act” would need to be passed by both Houses of Parliament. The need for approval by the House of Lords, and the lack of a government majority in the upper house, raises the possibility of an incoming prime minister making (or strictly recommending to the King) large numbers of appointments to the Lords under the prerogative power mentioned above. Even with a government majority in both houses, there might be limits on the scope of powers which parliament would be prepared to confer.

An attempt to create truly unlimited powers might face other difficulties. Might the King refuse to give royal assent to such a statute (no sovereign has done that since Queen Anne in 1708)? Would the courts decline to give effect to it, or imply some limitations based on the principle of the rule of law or the protection of individual rights under the common law (even assuming the Human Rights Act had been repealed)? Would civil servants or other public officials refuse to comply with measures they felt to be unconstitutional?

This is in the realms of speculation, but in a parliamentary democracy any parliament would have to consider very carefully how much more power to confer on an executive – especially because a party will not be in power forever.

The government should consider how to create more guardrails 

Arguably the powers that exist are already too wide and successive governments should have done more work to narrow them. Both the process of leaving the EU and the Covid-19 pandemic, for different reasons, saw the conferral and exercise of very broad ministerial powers, with little opportunity for parliamentary input. The House of Lords Constitution Committee recommended that the response to the pandemic should not be allowed to justify weakened scrutiny of government action in future. It remains to be seen whether that lesson has been learned.

Certainly, incumbent governments have not thought much about limiting the powers of future governments, let alone their own. On the contrary, as noted above the tendency has been to take ever wider powers without worrying much about how a future government – of any political colour – might use them.

In any case, no parliament can bind its successors, so a future government with a sufficient parliamentary majority can always legislate for new powers or remove existing limits or constraints (like the Human Rights Act).  

Nonetheless, there is value in putting in place “guardrails” around what government can do – rules, standards and procedures designed to produce better, fairer, more transparent governance and decision-making. Such guardrails could be removed in future, even if contained in statute. But doing so would itself usually involve positive action by a future government, may take time, necessitate a debate (certainly if legislation is needed) and come at some political (or even financial) cost.

For instance, the current Labour government could bring forward legislation to place limits or conditions on the prime minister’s ability to nominate members of the House of Lords (e.g. requiring advance clearance by a statutory appointments commission). Or put the ministerial code of conduct, or the rules about what roles former ministers and senior officials can hold, on a statutory footing. Or produce an updated version of the cabinet manual. Such steps might at least require any future government to justify changes to the powers of the executive relative to parliament.

The current government has not seen it as a priority to create such guardrails. That needs to change.