Laws can be made without a parliamentary vote, contrary to the health secretary’s claim

On 11 December the Department for Health and Social Care (DHSC) tweeted that Covid-19 passes would be required at some events in England from 15 December.

However at the time of writing, this controversial measure is not yet law and has not yet been passed through Parliament—it will be voted on by MPs on the evening of 14 December. After the DHSC tweet—which has since been deleted—was highlighted by Conservative MP Steve Baker, the health secretary Sajid Javid responded to say that no law is decided until it has been voted on.

No law is decided until Parliament votes on it. I've asked for this graphic to be deleted for implying otherwise. https://t.co/S55u8fWyqg

— Sajid Javid (@sajidjavid) December 11, 2021

But some Covid restrictions have been made law before parliamentary approval is acquired.

For example, new laws requiring people in England to wear face masks in shops and on public transport were made without a vote in parliament and have been in effect since 10 December.

This is an example of “delegated legislation” (also called “secondary legislation”), which is “made by a person or body under authority contained in primary legislation”, as the government’s official legislation website explains.

The “primary legislation” in this case is the 1984 Public Health (Control of Disease) Act which allows ministers to make laws to control the spread of an infectious disease.

MPs will get a vote on these new regulations, but they became law beforehand.

So Mr Javid is wrong to suggest that new rules only become law after a parliamentary vote - although in the case of the proposed Covid-19 passes, a vote will come first.

How does secondary legislation work?

Secondary legislation can become law without prior explicit parliamentary approval—and in most cases, the legislation is never put to a vote. But the laws governing who has the authority to make secondary legislation, and when, are originally decided by Parliament, through primary legislation which will have been voted on at some point. 

The Institute for Government writes that secondary legislation is used to fill out the details of a piece of primary legislation, to provide flexibility to update the law when necessary and to respond to emergencies.  

It notes that there is often not enough time for Parliament to scrutinise every proposed law in full and so secondary legislation offers a pragmatic solution to the problem.

Secondary legislation is also used to allow laws to be updated or to respond to urgent situations.