Delegated legislation: Brexit and the Defence of the Realm Act

The reaction of the public to the decisions of the High Court and Supreme Court to confirm the right of Parliament to debate the proposals for Brexit has revealed how little many people know, or understand, of the constitutional procedures which govern the development of law in this country. 

The resulting ‘Brexit Bill’ is a mere 133 words in length, and confers powers on the Prime Minister to invoke Article 50, whatever that may mean. 

This has happened before: the first Defence of the Realm Act, of August 1914, was similarly brief and in just over two hundred words opened the gates to a flood of secondary legislation that was to pervade every aspect of life for the duration of the war and beyond. 

Secondary legislation – rules, orders and regulations – were issued by the Privy Council and by government departments, and in many cases by the military authorities. 

Parliament failed, or was not permitted, to perform its duty of oversight and scrutiny of draft legislation and for over four years we suffered from poorly worded and rushed laws, many of which were repealed at the end of hostilities. 

The lesson from the Great War is that Parliament – not government – must be involved in the process of legislative development if we are to have good law.