Jake Hinks: The Coronavirus Act 2020: An Example of ‘Excessive Executive Dominance’

In this post, I consider executive dominance, firstly, outlining ‘natural’ executive dominance, before differentiating this from ‘excessive’ executive dominance. I use the Coronavirus Act 2020 to demonstrate the latter, exploring some of the factors that amount to excessive executive dominance. I conclude by reflecting on the consequences of my novel concept ‘excessive executive dominance’. 

Natural Dominance

The concept of executive dominance should be split into two: natural and excessive executive dominance. Executive dominance is the executive’s power to control, impede or perform the role of another branch of the constitution. The UK constitution lacks a clear-cut distinction between the three organs of the state and has evolved to achieve a balance between the three branches. The relationship between and the responsibilities of the executive and legislature are overlapping. In this evolved constitutional setup, natural executive dominance is necessary for the executive to carry out its constitutional role and the UK’s constitution to operate efficiently. Natural dominance is a consequence of the working of the UK constitution.

Characteristics of natural dominance include the fusion of powers between the executive and legislature, described by Bagehot as the “efficient secret” of the English Constitution. I contend this fusion contains the UK’s non-standard separation of powers and the executive’s numerical advantage in the House of Commons, which is the result of the first-past-the-post electoral system. The executive’s numerical advantage provides a legitimate way for the executive to achieve the mandate on which it was elected, indicating a link with “democratic legitimacy”. The significant presence and subsequent control of the executive within the Commons is illustrated by Standing Order No. 14 and the disparity between successful Private Member Bills and Government Bills. The executive’s ability to carry out a legislative function, in the form of creating delegated legislation, represents another factor of natural dominance. Delegated legislation is necessary due to the volume of legislation Parliament passes nowadays; it simply lacks time to shape all the legislative details.

Excessive executive dominance and the Coronavirus legislation

The recently enacted Coronavirus Act 2020 goes beyond natural dominance. It is a manifestation of excessive executive dominance, which can be defined as a position of dominance the executive is placed in by a combination and importantly an ‘extension’ of various natural dominance factors. This combination and extension disproportionately enhance the executive’s position and power, tipping the balance of power between the executive and legislature in favour of the executive. The key difference between natural and excessive executive dominance is that natural dominance is necessary for the constitution’s efficient operation, whereas excessive dominance hinders the efficient functioning of the constitution by undermining constitutional principles or preventing other branches performing their constitutional role.

Like natural dominance, excessive executive dominance is comprised of various factors, including wide delegated powers, Henry VIII clauses and a lack of parliamentary scrutiny. The Coronavirus Act 2020 encompasses all of these factors. The Act’s wide delegated powers, Henry VIII clauses and the limited parliamentary scrutiny of the Coronavirus Bill were outlined by Stephen Tierney and Jeff King in their post for this blog. What this post does is show how these factors fit into the framework of excessive executive dominance.

The Coronavirus Act 2020 was passed in just four sitting days, after being ‘fast-tracked’ through Parliament – decidedly quicker than usual. Despite this, the Act grants various wide powers to the executive. Wide delegated powers (that is powers which are broad or vaguely worded – leaving considerable discretion to ministers) are an extension of natural dominance formed by an ability to create delegated legislation, as they go beyond that which is necessary for the constitution to operate. They no longer serve the purpose of aiding the constitution’s operation, i.e. in allowing for flexibility, reacting to a developing society and inputting administrative or technical details (to name a few purposes). Instead they hinder the functioning of the constitution by allowing Parliament to circumvent adequate scrutiny. The Act’s wide delegated powers were considered by the Delegated Powers and Regulatory Reform Committee in its report, which detailed specific powers worth attention. Concerning S34 of the Act, the Committee rightfully points out that “clause 32 is not limited to circumstances occasioned by the coronavirus outbreak… Clause 32 is too widely drawn and should be related to coronavirus”. In drafting the legislation in such a wide manner, the Act is empowering the executive beyond what is necessary. It is not necessary in the emergency legislation tackling the Covid-19 pandemic, for the executive to have a power extending to circumstances beyond the coronavirus outbreak. Consequently, it is disproportionate in the powers it transfers to the executive and the oversight it provides for Parliament.

The Act also contains various Henry VIII clauses including S22, S34, S78 and Schedule 29.  Again, these clauses are an extension of the executive’s ability to make delegated legislation, contributing to excessive executive dominance. The extension is found in the nature of Henry VIII clauses. Unlike other delegated legislation, they enable the executive to amend primary legislation. This impedes the legislature’s law-making role and subsequently denies proper oversight. The lacking legislative oversight prevents the legislature from performing its constitutional role, thereby risking harm to constitutional principles. These clauses have been described as counter-democratic, undermining parliamentary sovereignty and unduly fettering parliamentary scrutiny. Nonetheless, even the fiercest critics do not deny the clauses completely, acknowledging that Henry VIII clauses can be useful. The Donoughmore Committee in 1932, despite sternly warning against the use of Henry VIII clauses, did identify the clauses were permissible in the ‘most exceptional cases’. One may argue that Covid-19 is an exceptional case and therefore the clauses under the Act are permissible. However, the Committee argued that their use should be subjected to safeguards to protect constitutional principles. They should, therefore, always contain a maximum time limit of one year, after which these powers should lapse, unless Parliament approves an extension. They should only be used for the sole purpose of bringing an Act into operation, and ministers’ actions under such clauses should be justified and approved by Parliament. The Henry VIII clauses under the Coronavirus Act do not satisfy these safeguards. Henry VIII clauses today are frequent, wide and unlimited in time and as result are constitutionally damaging.

The lack of parliamentary scrutiny can be seen in the 70+ SIs to date, subject to the ‘made negative’ procedure – requiring no prior scrutiny at all, and, therefore bypassing the authority of Parliament. The ‘made negative’ procedure is far less stringent than the negative, affirmative and super-affirmative procedures. This illustrates the lack of correlation between heightened executive power and heightened parliamentary oversight. Lacking parliamentary scrutiny contributes to excessive executive dominance by preventing the executive from being held to account. The made negative procedure under the Act, thus hinders the legislature upholding its constitutional role.

Consequence of Excessive Executive Dominance

The courts have gradually been addressing the issue of excessive executive dominance, Lord Mustill in the FBU case described not only the failure of political constitutionalism but also the presence of executive dominance:

In recent years, however, the employment in practice of these specifically Parliamentary remedies has on occasion been perceived as falling short, and sometimes well short, of what was needed to bring the performance of the executive into line with the law…

This is not a universally accepted stance, with recent works in political science/legislative studies (e.g. here and here) emphasising that Parliament is more influential than often assumed. Furthermore, aspects of Parliament’s recent work regarding Brexit, for instance, the Benn Act (The European Union (Withdrawal) (No. 2) Act, 2019), also appear to illustrate the functioning of political constitutionalism. Nonetheless, the influence and existence of executive dominance cannot be denied. Parliament’s strength (particularly in 2017-19) can be explained due to the weak numerical advantage of the executive (a natural dominance factor). The 2019 election saw the executive’s numerical advantage restored with a significant majority, and subsequently the political strength of Parliament weakened – evident in the reintroduction of a no-deal scenario (which the Benn Act fought to prevent) via the European Union (Withdrawal Agreement) Act 2020.

The far-reaching powers of the Coronavirus Act are an excellent example of excessive executive dominance. The concept legitimises a high level of judicial scrutiny should the measures/actions under the Act be questioned or subject to interpretation. Courts should read down the wide delegated powers and Henry VIII clauses, as seen recently in Public Law Project where the UKSC read down the Henry VIII clause found in S9(2)(b) of ‘LASPO’, placing emphasis on a narrow construction (para 26). The courts are ordinarily deferential to the executive in times of crisis or matters involving politics/policy considerations (take Lord Bingham’s approach in Belmarsh 9). However, such deference is arguably diminishing in favour of protecting constitutional principles. The Supreme Court’s approach in UNISON illustrates the judiciary’s safeguarding of constitutional fundamentals (See Mark Elliott’s post). Though UNISON protected the rule of law, it demonstrates the courts’ willingness to narrowly construe Acts of Parliament in order to preserve constitutional principles. The tool that the court has at hand for this purpose is the principle of legality, which not only protects common law fundamental rights but extends to fundamental constitutional principles. In Miller 2; Cherry, for example, the UKSC referred to the principle of legality by analogy (para. 49; see Alison Young’s post). The court held that the prorogation was unlawful, preventing the executive from undermining the constitutional principles of parliamentary sovereignty and parliamentary accountability. I, therefore, see the Coronavirus Act as an opportunity for the judiciary, if it is called upon, to similarly protect the doctrine of parliamentary sovereignty from excessive executive dominance.

While not directly citing excessive executive dominance, Miller 2; Cherry encompasses the factors this post is warning against. In proroguing Parliament for an extended period, the executive used their prerogative power beyond that what was necessary for the constitution to function. When empowered beyond what is necessary to conduct its constitutional role, the executive diminishes the ability of the legislature to perform its role, resulting in lacking accountability of the executive to the legislature. This creates a void which facilitates excessive executive dominance, and the UKSC has started to fill this void to provide the safeguard of constitutional principles that Parliament cannot. Miller 2; Cherry therefore establishes the implications excessive executive dominance has upon parliamentary sovereignty while demonstrating the UKSC’s approach to protecting parliamentary sovereignty against said dominance.

The undermining of parliamentary sovereignty by excessive executive dominance is based on a broad version of the doctrine, not the orthodox definition. As Lord Sales noted parliamentary sovereignty is rooted in constitutional facts and these facts can change, resulting in a modified version of parliamentary sovereignty (P.L. 2018, Oct, 687-707). I contend that the expansion from the historical natural dominance, (as described by the Donoughmore Committee report) to excessive executive dominance is such a change in constitutional facts. This change has occurred over time with the courts gradually reacting to said change, as highlighted in the case law. The courts willingness to modify the doctrine of parliamentary sovereignty is evident in Miller 2; Cherry. The UKSC applied an extended version of parliamentary sovereignty (para 42) specifically to limit executive dominance.

In this blog I have put excessive executive dominance into a broader framework for the UK constitution. The judiciary have already set foot on the path to restricting excessive executive dominance, illustrated by Miller 2; Cherry. The case paves the way for the courts to uphold and protect the fundamental principle of parliamentary sovereignty (even in a time of crisis) against an overpowering executive. The concept of excessive executive dominance legitimises a heightened level of scrutiny. Should the Coronavirus Act come before the courts, we should expect to see more restricting of executive overreach. 

The author wishes to thank Dr Martin Brenncke, Dr Ryan Murphy, Professor Alison Young and Professor Michael Gordon for their helpful comments on a previous version of this post.

Jake Hinks is a PhD candidate at Aston University.

(Suggested citation: J. Hinks, ‘The Coronavirus Act 2020: An Example of ‘Excessive Executive Dominance’, U.K. Const. L. Blog (9th June 2020) (available at https://ukconstitutionallaw.org/))