The Open University hosted Professor Stephanie Pywell’s inaugural lecture on 6 December 2022.
In her lecture, Professor Pywelll explored some effects of the empowerment of individuals and organisations to make delegated legislation, including the regulations about wearing face coverings in 2020. She also reflected on the empowering effect of education – especially that offered by The Open University
It is impossible for the UK Parliament to pass all the primary legislation – Acts of Parliament – that would be necessary to regulate the myriad spheres of modern life. In 1948, therefore, Parliament created Statutory Instruments as the main medium through which it can empower specified individuals and organisations to make laws described as ‘delegated legislation’. There is far more delegated legislation than primary legislation, but it is a subject that is not widely studied or understood.
In theory, delegated legislation is subject to scrutiny by Parliament and the courts, but close examination of reports by Parliamentary Committees and the Hansard Society revealed that these ‘checks and balances’ – which are considered central to the functioning of the UK constitution – are not always effective. This leads to a blurring of the boundary between the law-making function of Parliament and the administrative role of Government Ministers, raising questions about whether it is true to say that Parliament really does have ultimate responsibility for legislation. Some examples of the effects of delegated legislation raise concerns about the use and extent of these delegated law-making powers.
Until 2015, students were taught that there are several types of delegated legislation, but Stephanie’s study of the document used by the Parliamentary lawyers who write the legislation proved that this classification system was incorrect.
Starting with the story of Stephanie’s unconventional path through formal education, the lecture ends with some brief reflections on the way in which education can empower individuals to achieve unimaginably high goals – such a professorship at The Open University.
Watch the recording of Professor Stephanie Pywell’s inaugural lecture:
Professor Stephanie Pywell
Tuesday 6 December 2022
Dev: Good evening and thank you for joining us for another lecture in our Inaugural Lecture series. I am Professor Devendra Kodwani, Executive Dean in the Faculty of Business and Law here at The Open University. I am proud and privileged to be hosting one of our Inaugural Lectures which showcases our research, teaching and knowledge exchange portfolios. Each year the Vice-Chancellor invites newly appointed and promoted professors to give an Inaugural Lecture. Over the course of a year our Inaugural Lecture series provides an opportunity to celebrate academic excellence with each lecture representing a significant milestone in an academic’s career. This evening we will hear from Professor Stephanie Pywell, Professor of Law and Social Justice in The Open University Law School, who will explore some effects of the empowerment of individuals and organisations to make delegated legislation, including the regulations about wearing face coverings in 2020. She will also reflect on the empowering effect of education, especially that offered by The Open University.
But before we begin some housekeeping. The lecture will be followed by a Q&A session and then we invite you to celebrate with us downstairs for those of you who are with us in person. For anyone in the audience using Twitter please feel free to tweet using the hashtag displayed and tagging @OpenUniversity and let the world join us this evening. For members of our audience joining us via YouTube, please use the email address provided and keep your comments and questions brief so that we can address them during the Q&A session. Now it is time to hand over to Hugh McFaul, Head of the Law School, who will introduce Professor Stephanie Pywell.
Hugh: Thank you Dev. So this is a great event. We've been looking forward to this for quite some time and I'm really delighted to be able to introduce Stephanie Pywell’s Inaugural Lecture on Aspects of empowerment in legislation and education. I've worked with Steph for at least 10 years, but her association with The Open University spans much longer than that, over 40 years including first as a student and as an Associate Lecturer, and then as a Lecturer, and as a Senior Lecturer, and now as a Professor in The Open University Law School. I was very amused, I was speaking to some of your friends who have come out in force. It's great to see you all here tonight. One of them said that they threw a party for you in 1988, a goodbye to the OU party. So how wrong was that? So they got that one wrong. So Steph studied an Open degree with us and has very fond memories of attending The Open University summer schools and learning as part of her studies of mathematics complicated mathematical formulae to the tune of Somewhere Over the Rainbow. So I propose that if we give her a very loud round of applause as she takes the stage, she'll be forced to have a little rendition of that during her lecture. So, her experience as an Open University student has shaped her commitment to creating a welcoming and accessible learning environment for our students. A commitment that was reflected in her creation and maintenance of qualification guides, study websites, teaching on Level 1 modules, but also in her work supporting the development of our OU PhD programme. Steph has always combined a flair for innovation with her commitment to student success and this potent combination was recognised in her Open University Individual Teaching Award in 2019 for the highly successful 12 Introductory Steps to Law which provides our graduate entry students with the foundations of legal knowledge to allow them to study with us through the rest of the degree. Stephanie's research interests are diverse. Her article on delegated legislation has been described as the ‘go to’ piece for anyone working in the area, while her empirical work on the law governing weddings and related ceremonies was cited 19 times in the Law Commission's 2022 report, Celebrating Marriage. So it's great that we can celebrate with Steph today her promotion to Professor and it now gives me great pleasure, and I want to hear a very large and loud round of applause for Steph as she takes the stage, to welcome Professor Stephanie Pywell to the podium.
Steph: Thank you Dev and Hugh, and good evening everybody. Thank you so much for attending this lecture, whether you're here in the Lecture Theatre or online. I must first thank everyone who's helped me to achieve this absolute pinnacle of impostor syndrome. My long suffering husband, Barry, daughter Alison and son in law Anthony, who have sat through this before, my wonderfully supportive colleagues in The Law School and beyond, and the Professors who generously supported me throughout the lengthy promotion process. Roughly in order of their involvement, Professors Simon Lee, Paul Catley, Geoff Peters, Richard Holti, Dev Kodwani, Mark Fenton-O’Creevy, Rebecca Probert, Peter Bartlett, Peter Cumper and Louise Westmarland and I'm immensely grateful to everyone who sent lovely messages, cards, flowers and gifts when they heard that I'd been promoted to the Chair in Law and Social Justice. This event hasn't organised itself. So huge thank yous go to the colleagues in the Rights, Archives, Audio Visual, Marketing and Communications, and of course Catering teams who have made this evening happen. I'm looking forward to going downstairs and meeting the main reason why I have a good work-life balance, my two year old grandson Sammy.
I'm going to reflect on some consequences of empowerment in the form of a legislation sandwich. As you can see the OU is such a special place that we have bespoke blue bread. The first slice is a summary of the first 51 years of my education and work, which as one of Alison's favourite childhood books, Janet and Allan Ahlberg’s ‘Bye Bye Baby’ describes itself as a sad story with a happy ending. The filling shares some of my research into delegated legislation which is law that is made when ministers and other individuals or bodies are empowered to make law. The second slice is an outline of some of the things I've been empowered to do since I started delivering education, and a brief reflection on how my colleagues and I try to empower our students. The filling is a bit stodgy so I've made the bread as light as I can.
So the first slice of bread. My education certainly wasn't a straightforward path from primary school to university. Because I was such a swotty little girl with Kirby grips. my tie loving headmaster suggested to my parents that I should go to a boarding school that would stretch me. Christ's Hospital is a genuine charity. Fees are non-existent or means tested and you can't go there if your parents are rich. Excited by Enid Blyton stories of midnight feasts, I passed the entrance exams and that was that. This is a rare photo of me not swotting. Jane and I tended a tiny rectangle of earth, optimistically dubbed a garden, just outside the science block. We constructed a space-age themed entry for a flower arranging competition. It was a rocket-like sculpture made of mud with homegrown marigolds stuck into it, and it was highly commended. I did well in O-Levels but I was prescribed sleeping pills because I was revising for about 10 hours a day so my parents wisely decided I might be healthier if I left. So I went to Stevenage College of Further Education where I, far greener than anything we'd stuck into the mud rocket, was working till 10 o'clock at night and crying my eyes out because I was terrified of the smoking, lolling, enormous men who were there. I didn't know anything about it and I was studying for 4 A-Levels, 2 S-Levels which were higher than A-Levels and Use of English which you had to do to go to Oxbridge. So again, steered by my parents’ concern, the 10 o'clock stuff really wasn't working, so I had to go to work. So I enjoyed 4 Saturdays as a Littlewoods cashier before becoming a laboratory assistant and then an office junior. I had to sort the post and push a trolley around a huge office to deliver it. I learnt typing and shorthand and eventually became a Director’s Secretary with a status-defining, state of the art, IBM electric golf ball typewriter. Then I met and very quickly married Barry. He realised my achievements didn't match my intellect so he overruled my desire to be a dutiful wife who would hand scrub his shirt collars, and he secretly requested a prospectus from an institution whose 1982 logo you might recognise. I'm delighted to welcome online my tutor counsellor from that time Professor Susan Tresman, and my maths tutor, the Reverend Elizabeth Bunker. I studied science, maths, statistics and economics and then really proud of having BA after my name, promptly became a full-time mum to Alison, trained as a tutor in basic adult literacy and started a home-based word processing business. Through the tutoring I met a dyslexic woman who was training to be a legal executive. She confided her worries about producing assignments, so I word processed them for her correcting her grammar and spelling. After the first one I excitedly told Barry, ‘I found what I want to study when Alison goes to school, it's law’. So I studied for the A-Level at evening classes when she went to nursery school, and for my Bachelor of Law and PhD at the University of Hertfordshire when she was at primary school. I am very honoured that the Head of Hertfordshire Law School, Penny Carey, the Dean, is online joining us this evening. Thirty years after the mud rocket I got a lovely job in legal academic publishing with loads of letters after my name. About six years later I resigned following a nervous breakdown after Barry recovered from 10 months of a life threatening illness. I did freelance work and in 2009 I became an Associate Lecturer, guess where. I slowly recovered and on the 18th November 2013 I started a one year fixed term post, guess what, you're ahead of me, finally empowering me to share my love of law with whole cohorts of students.
Now the sandwich filling. It's important that all citizens are empowered to find and understand the law that governs them, not least so that they can live their lives without breaking it. Almost everything that I’ll say applies to the law of the UK as a whole. The devolved nations of the UK have their own separate law-making powers in specified areas, but they're still bound by some laws made in the Westminster Parliament. The UK has a common law system so cases decided by the higher courts become part of the law. But we also have legislation which is the law that's purpose built and written down and it's in bold font because it's legislation that I'll be talking about this evening. But first I need to outline one aspect of the constitutional principle of Separation of Powers, which specifies that law should be made and applied by two separate state institutions. The legislature makes law. The UK legislature is technically the King in Parliament, and it consists of the elected House of Commons who sit on green benches, the unelected House of Lords who sit on red benches, and the hereditary monarch who gives royal assent to every Act of Parliament. Back to the UK’s supreme source of law, and they're known as primary legislation. The executive applies the law. It consists of the Prime Minister, the government, which is appointed by the Prime Minister, and authorities such as the civil service, police and local authorities. The Separation of Powers isn't perfect because government ministers are usually MPs, and most votes in Parliament usually go the government's way, but there is a democratic element to Parliamentary law-making because MPs in the House of Commons are elected. The thing to remember from these two slides is the principle that neither the government nor individual ministers should have ultimate responsibility for legislation because that is Parliament's job. As well as primary legislation the UK has delegated legislation. As I mentioned at the beginning, this is law that's made by government ministers or organisations using powers delegated to them and that's usually, but not always, done by an Act of Parliament, which is called an Enabling Act. It's the nature of research that you start searching for something not knowing what you'll discover, and I was aghast at some of what I found when I started this unpromising sounding topic. I realised that I was discovering important information about the laws that govern this country and despite having a PhD in Law I had no idea about it and as I'll outline later it has provided a huge boost to my career. As a student I'd learned that there's a lot of delegated legislation, that it is very detailed and technical, that it is necessary to regulate all sorts of aspects of life, that Parliament hasn't got the time or expertise to make it, that it has the same force as primary legislation, and that it's laid before Parliament for scrutiny before it becomes law, which gives it democratic legitimacy. It can be declared invalid by a court if it goes beyond the powers delegated to its maker by the Enabling Act. Lawyers call those last two characteristics checks and balances because the delegated law-making power isn't absolute.
But when I was a freelancer writing a unit for the OU in 2012 I realised I couldn't explain delegated legislation to students because actually I didn't understand it. So I started rereading the leading textbooks on the English legal system and they all agreed that there were various forms of delegated legislation, Statutory Instruments, which I will refer to as SIs because I can't keep saying Statutory Instruments, byelaws, orders in council, and courts rule committees. I was mystified. Surely committees were going to be groups of people, not rules or laws. So my consequential Googling unearthed a document called Statutory Instrument Practice and I discovered that since January 1948 SIs have been the main form of delegated legislation. There are also byelaws and a few other forms that I won't be discussing this evening. Now I've done my best to verify everything in this lecture but I have discovered that the more you know about delegated legislation, the more you realise how much you don't know. So I will be saying ‘usually’ a lot, as you might have noticed. There are five types of SI, Orders in Council and Orders of Council, both made by the Privy Council, which consists of about 700 past and present senior politicians, judges and religious leaders who are called The Right Honourable for life. Ministers are usually attended by only four government ministers plus any new councillors. So Privy Council meetings are a sub-group of elected MPs from the appointed government with a hereditary monarch, which is an imperfect example of democracy. The other three types of SIs are orders, rules and regulations and they're usually made by a government minister who's usually a member of the House of Commons, so they're green, but sometimes they're made by a statutory body. Official statistics confirm that there is a lot of delegated legislation. This chart shows that between 23 and 55 UK-wide Acts of Parliament were passed every year between 2004 and 2022. This chart where the vertical scale is about 50 times bigger or smaller depending how your mind works, shows that between 1225 and 3481 SIs were made annually in that period. So there can be 100 times as many SIs as there are Acts in a year. So you might think that Parliament would spend a lot of time carefully scrutinising this delegated legislation. You'll recall my student self’s understanding that being ‘laid before Parliament’ is one of the checks and balances that gives it democratic legitimacy.
Well, let's explore the scrutiny procedures that can apply when delegated legislation is ‘laid before Parliament’. There are five broad types of scrutiny procedure, and every Enabling Act must specify which type applies to the SIs made under it. This staircase represents the five types in increasing order of scrutiny. The size of each step has no other significance. The lowest level is made only. These SIs don't go before Parliament at all. They are usually non-contentious, such as orders bringing Acts of Parliament into effect on specific dates. Going up a step laid only SIs are delivered to a specified office in each house of Parliament. The titles are noted in the day's business papers and usually scrutinised by a joint committee of both houses but that's it. Parliament has no further say and they just become law. The middle step refers to SIs subject to the negative procedure. They're laid before Parliament and if no objection is upheld in either house within 40 days they become law without a debate, because most SIs subject to the negative procedure are actually law before they're laid before Parliament. Some are laid in drafts and aren't formally made until 40 days later provided no objection is upheld, but generally they are law. SIs that are subject to the affirmative procedure on the second step down are subject to a modicum of Parliamentary scrutiny. They are actually voted on after a debate in the House of Lords and after consideration by the delegated legislation committee in the commons, they are usually laid in draft form and don't become law until they're voted on. But if an affirmative procedure SI is already made before it's laid, it can't come into force or remain in force unless it's voted on within a number of days, usually 28 or 40, as specified in the Enabling Act. I will just ignore the more rigorous procedures on the top step because they apply only to particular types of SIs made under specified acts. Parliamentary sessional returns indicate the time spent on SIs. In 2019 to 2021 the House of Lords as a whole spent roughly 222 hours, which is about 11% of its business time on SIs passing 350 affirmative motions. Because of additional committee work it's complicated, but that would be an average of just 38 minutes spent on each SI. It is impossible to give a comparable figure for the House of Commons because almost all the detailed consideration takes place in committees, usually. But the whole House of Commons has spent just 70 hours which was 4½% of its time on 384 affirmative motions. So the fact is that Parliament spends very little time debating delegated legislation, even though there's far more of it than primary legislation, and the elected House of Commons spends a lot less time than the unelected House of Lords. If you care about the democratic element in law-making that's a cause for concern.
Let's consider how often each procedure is used. These charts show for 2019 to 2021 the percentages of non-COVID and COVID-related SIs that were subject to each type of scrutiny. The blue represents the SIs that were made negative. They were law before they reached Parliament and remained law unless an objection was upheld. The pinkish red represents SIs that were made affirmative. They were also law before they reached Parliament, but they did have to be voted on within a specified number of days in order to remain law. The orange represents SIs that were draft affirmative. Those were actually voted on before they became law. The thin blue line at the top of the non-COVID bar represents SIs that were draft negative, which were also laid before becoming law, but also automatically became law if no objection was upheld. So about 70% of non-COVID SIs and 97% of COVID SIs were made before Parliament had any chance to scrutinise them.
I’ll now outline what each type of SI is used for. Orders in Council should be used only to affect constitutional change, really fundamental issues that affect the structure of the state. There are two sorts of Order in Council. One made under power delegated by Parliament in an Enabling Act which I've mentioned, and another made under the inherent power of the crown, also known as the Royal prerogative, which is exercised by the hereditary monarch on the advice of the appointed government. Both can empower the King in Council to make orders. Orders made under powers delegated by Parliament are called statutory Orders in Council. So they're given SI numbers and you can find them if you want to, I suspect you won't. But those made under the royal prerogative are prerogative Orders in Council, and they are actually a form of primary legislation that's not scrutinised by Parliament at all. There's no index. You have to scour the individual sets of the minutes of Privy Councils in order to find them. One source of my aghastness was discovering an Order in Council that was issued on the 3rd May 1997 permitting appointments to a limited number of situations in the Prime Minister's office to be exempt from the normal civil service recruitment procedure. This was 1 day after Tony Blair became Prime Minister, and it empowered him to appoint Alastair Campbell and Jonathan Powell to senior advisory roles, and subsequent Prime Ministers have done the same. On the 28th August 2019 the late Queen approved the prorogation of Parliament by an Order in Council, although Boris Johnson’s advice that she should do so was later ruled unlawful by the magnificent Lady Hale in the Supreme Court.
It’s sad to say my excitement reached fever pitch on the 10th September this year because I saw Orders in Council being made at the Accession Council for King Charles III. Penny Mordaunt, the Lord President of the Council, read the draft of 12 Orders and to each one the King simply said ’approved’. It's important for citizens to know that Prime Ministers are empowered to make political appointments without a recruitment process and to mislead monarchs, even temporarily, into proroguing Parliament.
More positively, here's the start of an Annex to another Order in Council. ‘Now therefore know ye that we by virtue of our prerogative Royal and of our especial grace will and ordain as follows, there shall be and is hereby constituted and founded a university with the name and style of The Open University’. You can just about see in the photo the seal attached to the Royal Charter bears an image of the Queen on horseback. Orders of Council don't involve the monarch. Again, they can be statutory or prerogative and the statutory ones can be SIs. They often grant permission for educational institutions to award degrees, or approve the rules of professional bodies like the General Medical Council. Eight Orders of Council were made during the Accession Council. This one orders the Lord Chancellor to affix the Great Seal to the proclamation of the King’s accession. The other seven covered ceremonial matters like gun salutes and further proclamations which I think is a sensible use of delegated power.
The other three types of SI are theoretically designed to achieve distinct kinds of objective, but they can be used interchangeably. Orders usually bring about a one-off change. For instance, for football spectators 2022 World Cup Control Period Order 2022 doubled the period during which special measures to control football fans can be implemented from the usual 5 days before a match to 10 days before the first World Cup match. That order was made under the negative procedure. It was made at 1140 on the 22nd September, laid before Parliament at 1500 on that date, and came into force on 14th October and again, I think that's an appropriate use of delegated power.
Rules are usually procedural so they stipulate how things should be done rather than what should be done. It all sounds fairly tedious and often it is. But the Family Procedure (Amendment No. 2) Rules 2022 included a change to the law governing injunctions, they are Court Orders that protect women and girls who have suffered, or who are at risk of suffering, genital mutilation. These injunctions can prevent potential victims from being threatened with violence or require that they be taken to school or Social Services at frequent intervals to ensure that they haven't come to harm. The law was that as soon as reasonably practicable after the injunction had been granted, the person who'd sought it had to make sure the injunction was given to the person it was protecting the victim from. But under the new rules that must be done within 2 days of the granting of the injunction and if that doesn't happen the injunction has no effect and the victim is unprotected. That change was made under the negative procedure so Parliament didn't consider it and the title isn't exactly informative. The Family Procedure Rule Committee consulted on it, then made it on the 12th July. It was laid before Parliament on the 18th July, no objection was upheld so it came into force without any debate on 1st October, but I'm not sure whether it's okay for something so important to become law without any Parliamentary scrutiny. Regulations are the infamous detailed and technical legislation that I’d learned about when I was a student. They've recently achieved a much higher profile in our national life because of two momentous events, Brexit and COVID. I’m not going to say another word about Brexit. But the bad news is I'm going to ask you to participate. So how many sets of COVID regulations do you think were made? By that I mean regulations with the word Coronavirus in their title that were made as United Kingdom SIs, so excluding all the ones made in Scotland, Wales and Northern Ireland, between the 10th February 2020 and the 24th September 2022. Somebody guess, any number. 120. Any advance on 120, higher, lower? Well actually there were 390. But the Hansard Society, a charity that conducts independent research into Parliament on what goes on there, calculated that actually 582 Coronas-related virus SIs were laid before Parliament between 1st January 2020 and 3rd March 2022, but many of those didn't have the Corona word in the title. So, as so often, it depends how you count, but there were certainly a very large number of regulations and they were often made at very short notice without any Parliamentary scrutiny.
Here's another example of some COVID regulations. The Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) (Amendment) Regulations 2021 and it says “The Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021 are amended as follows. In regulation 48b a. In paragraph 1 for 5 and 6 substitute 4 and 5 and so it goes on. There's reams of it, so you get the general idea. Some SIs are impossible to understand. In order to make sense of regulation 2 someone has to access the original regulations, locate the relevant paragraphs, then amend them in their head by substituting the numbers and dates. Lawyers can prepare Keeling Schedules to help Parliament understand the effects of SIs on pre-existing legislation, but they're time consuming and expensive to produce. So they're used fairly infrequently. More often there's an explanatory memorandum, but that can be nearly as opaque as the SI itself and these non-emergency regulations were also made under the affirmative procedure. But again, they'd already come into force before Parliament voted so the vote simply kept them in force. They were made on the 14th December, came into force at 6.00 on the 15th and we're finally laid before Parliament at 11.15 on that date. Now I hugely admire the lawyers whose minds are sufficiently logical to write SIs but the results are rarely a quick and easy read. The one I wanted to talk about is The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place)(England) Regulations 2020. There were a UK SI but they applied only to England because the devolved nations of the UK make their own health-related legislation. I'm sure you will recall that if a non-exempt person didn't wear a face covering in specified situations they could be charged with a criminal offence. You might not have known that transgressors could be fined an unlimited amount. Such restrictive regulations are subject to the affirmative procedure. These were made as an emergency measure. So they were made at 9.00 on 23rd July, laid before Parliament at 1.15 that day, and brought into force the next day. So they became part of the criminal law before Parliament had any chance to scrutinise them and that was all perfectly lawful because Matt Hancock was empowered by an act of Parliament to bypass the draft affirmative procedure if he unilaterally decided the situation was an emergency. That's a very convenient power to have if you're making potentially contentious legislation that some people regard as an unjustified restriction on individual liberty. Now, you might agree that it was an emergency that people should wear face coverings, but by mid-July the government had known about COVID for 6 months so I would argue that Matt Hancock should have drafted the regulations earlier, allowing time for them to be voted on by Parliament before they were needed if face coverings were an important public health measure, or that he should have waited for them to go through the normal draft affirmative procedure if really they were just a populist platitude.
So whatever you think of the government's effect to mitigate the effects of the virus, the fact is that a lot of regulations, including those that could involve someone getting a criminal record, were signed off by Matt Hancock without any meaningful Parliamentary scrutiny at all. Now I mentioned that delegated legislation can be declared invalid by a court if it goes beyond the powers delegated to the person or body that made it. But some acts make hardly any actual law. Their main effect is to empower ministers to make startlingly wide-ranging laws. A good example of this is the Childcare Act 2016 which was described by committee that examines the delegated powers in all bills that pass through the House of Lords as “almost entirely enabling and containing virtually nothing of substance beyond a vague mission statement”. Now this Act requires the Secretary of State to provide 30 hours of free childcare per week for 38 weeks each year for qualifying children of working parents. But the great majority of the Act empowers the Secretary of State to make regulations creating criminal offences relating to disclosure about whether a child qualifies for free childcare, imposing a maximum penalty of £3000 for those offences, changing the amount of the maximum penalty and amending, repealing or revoking any provision made by or under an act whenever passed or made. Let's think about that for a moment. The Secretary of State is empowered to change any law made by any act of Parliament, and regulations made under the Childcare Act aren't subject to a special more rigorous procedure. So they're likely to go through Parliament without being thoroughly scrutinised and it would be hard for a court to rule that regulations were beyond the powers delegated to the Secretary of State because those powers are effectively unlimited.
So I hope the sandwich filling has convinced you that it's at least arguable that government ministers on the advice of their non-elected not formally recruited political advisors are over empowered, because checks and balances aren't always as effective as one might hope. That has resonances with my sad story with a happy ending because for years I wasn't empowered to achieve the things that I should have achieved after my excellent secondary education because despite my parents and teachers repeated efforts to calm me down, there were actually no effective checks and balances on my paranoid perfectionist desire to get good grades.
So the second slice of bread. In 2012 when I discovered that textbooks weren't correct about the classification of SIs I decided I ought to write an article about it. I was a nervous, unknown, freelance legal academic, and I was challenging some very eminent writers. So I emailed the clerk to a Parliamentary committee who kindly agreed to check my draft article. He was rightly cautious about giving me his unqualified approval but the fact that he didn't identify any inaccuracies gave me the courage to send it to New Law Journal which published it a year later. A year or so after that I got an email from Michael Zander, an Emeritus Professor of the London School of Economics. I initially thought it's got to be a scam but actually Professor Zander was requesting my permission to reproduce all of my little article word for word in the 2015 edition of his famous textbook, The Law-Making Process, so I ummed and erred for about a nano second before agreeing, and that's how my name appears in the same acknowledgments list as Lord Neuberger. In 2017 the Law School’s two Professors encouraged me to write an article about it. It took more than a year, but the article published in January 2019 in the more prestigious Public Law was identified in 2020 as my best piece of work for the Research Excellence Framework 2021, a sort of Ofsted for universities. So last year I wrote about it in my application to become a professor and this May I was honoured to be invited by the Hansard Society to collaborate in writing a plain English explainer. That's going to be published on the Society's website where it will empower more citizens to understand more about how their lives are governed. So thanks to the life-changing checks and balances provided by becoming a wife to Barry, a mother to Alison and a Granny to Sammy and my very late developing understanding of how my mind works, and just over half a century after the mud rocket, my education has empowered me to have a job I love, the best colleagues I've ever had and a title beyond my wildest dreams.
My colleagues and I now share the responsibility of empowering our students as much as we can through our teaching. Much of my own teaching work involves creating what I hope is a supportive learning environment, the background stuff like module guides, qualification guides and websites. Like SIs those background things are excruciatingly detailed, but they're also not in the least glamorous, rather like SIs. I do hope though that unlike SIs they are easy to understand because they and all our teaching materials must be accessible. Technically students need to be able to get to the materials either on an electronic device or in printed or audio form. We have specialist colleagues who advise us about assistive technology like screen readers so we give every picture a long description and we use informative surface text for hyperlinks rather than saying ‘click here’ which is useless if the link is broken. Materials need to be linguistically accessible. So we try to use normal everyday language rather than deploying obfuscatory terminology interwoven with a multiplicity of tautological notice syntactically sesquipedalian polysyllabic adornments. So, we write to help students to understand not to show them how much we've learned. That said, it is very easy to forget that most people won't have heard of something you've been thinking about for 20 years. I do sometimes forget that laid before Parliament is not a normal thing to say. Rest assured that no chickens or eggs were harmed in the making of this lecture.
Teaching materials must conform to the three C's. The first C is consistent. When you're slogging away on your own at home to get those precious letters after your name it is hopeless if two documents use different terms to mean the same thing. Consistency is a bit like having running water in your house, you don't notice it till it's not there. The second C is current. As well as keeping the law as up to date as our production processes allow, we try to keep students abreast of all the amendments to the University's central websites, regulations and documentation. The third C is correct because if we publish something that's wrong it's awful for students and it's embarrassing, time-consuming and expensive for the University when we issue a blizzard of corrective emails and news items and of course materials must be equal, diverse and inclusive in their topics and their language. So the Law School has a champion, and every module has a lead academic who makes sure we actively consider those features of our work. Our materials teach skills as well as simply imparting knowledge. We could just provide students with copies of everything we want them to read but instead we gradually build up their library and research skills empowering them to discover far more for themselves than we could ever teach them. We actively teach academic skills like critical thinking and writing in certain ways, which empowers students to question and challenge what they read and to express their own views cogently and convincingly. A team of dedicated colleagues work with us to ensure that our materials develop students employability skills, such as problem solving, communication, collaboration, and self-management. These empower students by increasing their self-esteem and ambition so that they'll dare to push themselves to achieve great things. Of course, the reason that we're empowered to empower students is that we work for the life changing institution, whose mission is to empower everyone through education, The Open University. Thank you.
Hugh: I'll never think about laid before Parliament in the same way again, that's amazing. So we're going to have time now to reflect on Steph’s lecture and invite you here in the audience or at home online to make some comments or ask some questions. So we're going to just go and sit over here Steph. So we've got time for some questions. If you're with us in the room please wait for the roving mic to come to you. Put your hand up if you'd like to ask a question. Can I ask you to say your name and where you're from and also please keep the questions short, partly to allow us to get quite a few questions in and also because Steph is deaf I'll be repeating the questions to her as well so it will help me if they're quite short. For those attending the reception afterwards just bear in mind that Steph might ask you to speak clearly because it'll be quite a lively environment. I'm sure once the prosecco gets opened there'll be plenty of noise and good cheer, hopefully. So also we'd like to invite any comments or questions from the online audience using the contact information and email provided on the slide. So let's have some questions and comments. If you're in the room, put your hand up, we'll get you the roving mic and I will repeat the question. So any thoughts or comments?
Kara: Kara Johnson from The Open University Law School. Thanks for that Steph. It was a really fascinating talk this evening. I just wondered from your time as an Associate Lecturer and a central academic, and your focus on teaching and learning, what you've learned from our students?
Hugh: So Kara is asking during your time as a central academic and Associate Lecturer what have you learned from our students?
Steph: I've learned that they are the most fantastic bunch of determined people ever. You read some of their stories and they cope with deaths, some people give birth the day before an exam and still pass. Some people have horrible things happen to them and they plough on. I just think that the determination that it takes and you see this at the graduation ceremonies, when people say who's a carer and who goes to work, nearly all the students do and yet they somehow managed to squeeze three years, six years out of their lives to get a degree. So I think the fact that they are wonderful really.
Hugh: Thanks Kara. A question from Liz.
Liz: I'm Liz Hardy and I'm also from the Law School. It was great to hear about Steph’s career. So thinking about her academic career, what would you say do you think is your greatest achievement?
Steph: It could be sitting here now with you just possibly. I didn't pay her to ask that by the way. But actually when I got the Teaching Award for the 12 Introductory Steps because that was doing what I love best, which is I distilled 1200 hours of stuff, 2 modules, into little nuggets that people could do in 3 hours and it did help them to pass their Level 2 exams. So I think probably that was the greatest work of condensing I've ever done.
Mark: Hi Steph, a fascinating discussion and I found myself thinking about Keir Starmer’s proposed plans for constitutional reform and I wondered if you were sitting in a room with Keir Starmer what you might be suggesting to him in terms of constitutional reform to improve democratic accountability for legislation? I’m Mark Fenton-O’Creevy from the Faculty of Business and Law.
Hugh: So Mark is asking about Keir Starmer’s proposals for constitutional reform. So if Keir was in the room, and I'm sure he's listening online, what advice would you be giving him in terms of constitutional reform about making law-making more accountable given your research?
Steph: Well I'm going to piggyback on the Hansard Society here because they're better at this than I am. I think there should be a Parliamentary committee in the House of Commons only, and there's about 15 people and their job is to scrutinise delegated legislation, because they don't. There is one committee that has got members of both houses on it but the other 2 or 3 committees that ever look at this stuff are all based in the House of Lords. So they're not accountable really and they're not elected. Also I think some of the stories one hears about peers, maybe some members of the House of Commons are a bit more feet on the ground and I think it should go through the House of Commons because as I've shown you, there’s some really important stuff that is done there. So I think a Commons committee. It's not realistic to say that the Commons should scrutinise all of it because they haven't got the time. But a committee which is where most of the real work in Parliament happens anyway in select committees, would be a good idea I think, so that’s what I’d like to see.
Hugh: Thank you Steph. So we’ve got a couple of questions in the front and one at the back.
Tricia: Hi, my name is Tricia. I'm a friend of Steph’s from our local church in town. Firstly, so very proud of you. Thank you for the invitation. Your passion for accessibility and plain English is to be commended and I just wondered if there's a way that you can extend that passion out into other academic institutions, or if there are moves afoot to do so because it's something that's sadly lacking.
Hugh: Tricia was commenting on your passion for plain English and she's wondering in The Open University environment, how you can perhaps influence other institutions, because plain speak in plain English is sadly lacking in other institutions. So any thoughts on taking that crusade out beyond the walls of The Open University?
Steph: Well I suppose if I've convinced all of you that plain speaking is a good idea you can go to all the places you work and move on your friends and you can tell them that actually the long words aren't really very clever because nobody understands them and there's no point in teaching if people don't know what you're telling them. So all I can ask is that if you agree with that, you go and try and do the same thing because I don't think, although today is very exciting, I don't think I've got that much power outside these four walls.
Nick: Nick Braithwaite from the STEM faculty, thank you very much for your clarity. I wonder how much you knew about other examples around the world? Where are the jurisdictions that we really should be modelling ourselves on, having been the mother of Parliaments we've got a lot to learn by what you tell us.
Hugh: So Nick's wondering about what we can learn from other Parliaments. We've been the mother of Parliaments but you're suggesting there's things for us to learn from other jurisdictions. He's wondering which jurisdictions you think we might be able to learn from and in principle do you think that that kind of comparative study of law and constitutions has got something to offer for our understanding of our own constitution?
Steph: I suspect comparative constitutional study has a lot to offer but I’m afraid I’ve never done it. I've always been very much an English law person and some of my colleagues could tell us much better than I can. I don't know if anyone wants to volunteer but I’m afraid I don't know. I'm sorry.
Andrew: Andrew Gilbert from The Open University Law School. Your work with Professor Rebecca Probert on weddings law has been instrumental in leading to a change in the law and making it possible for people to marry how they want to marry. I wonder where you rank that in terms of your achievements and contribution.
Hugh: Andrew is asking about your research on weddings and wedding celebrations and that's been influential in terms of where people choose to marry. He is asking how would you rank that research in terms of your achievements reflecting on the impact you've had there and the research that you've done?
Steph: Well at the moment it's only a Law Commission proposal and the Law Commission is only empowered to set up a framework under which the government and Parliament if it so chose could enable all of those things to happen. But if it happened I think it would be fantastic because I think people should marry as they want to and much as I love Church of England traditional weddings, it's not for everybody. It's not appropriate in our society now that people should be shoehorned into that, or into a totally secular ceremony at a Registry Office. So I think people should have a choice and if it happens, I'll probably be too old to enjoy it, but if it does, I shall be very proud of that as an achievement.
Kim: Thank you Steph and congratulations by the way. Kim Barker also in the Law School. I was just wondering if you think devolved legislatures have got something to learn from the way we do it in England, and if not maybe whether England should be learning from how we do it in other devolved legislatures in the UK?
Hugh: So Kim's asking about the relationship between the experience and practice within the English legislative system compared to what we can learn from the devolved legislatures.
Steph: I’m afraid devolution, a bit like international is another gap. I told you I'd say usually a lot. I really don't know enough about what they do. What I've seen, they look slightly more civilized which I think would be a good thing, if it was a bit less like a bear pit, and a bit more like a debating chamber. I think there is lots to learn from being civil to people which I think would really help if it happened in the UK Parliament.
Hugh: Thank you very much for these questions. So we've got one here, Simon and one at the back. So maybe Simon next and then Sophie at the back.
Sophie: Hello Professor Pywell. I just want to say thank you so much for that really inspirational and informative lecture. I kind of have a question with a personal slant as well. It would be what would be your key piece of wisdom or your key pieces of advice for somebody who is in the early stages of their academic career?
Hugh: So that was Sophie from the Law School and she's asking for some advice you'd give to early career researchers based on your own experiences of research and the success you've had. So what advice would you give early career researchers?
Steph: I think take every chance you get whatever it is, however unpromising it looks because if you find something that you think I don't understand that, which is what happened to me in delegated legislation, it can take you quite a long way. I think you shouldn't be shoehorned into stuff that you think ought to be interesting. Just do what you find interesting and stuff you really want to know because then you'll be motivated enough to trawl through the minutes of Privy Council meetings and other sad things like that, to find it. So I think ‘follow your dreams’ is a bit of a cliche, but it's something like that.
Hugh: It’s almost Somewhere Over the Rainbow territory that.
Simon: Simon Lavis, Open University Law School. Thank you Steph for a brilliantly clear and interesting lecture. Just on the question of delegated legislation. A number of your examples were relating to the Coronavirus pandemic and there's an argument to say that in an emergency the government can be empowered to make more important legislation more quickly to deal with the situation. I know you talked about the one example where maybe the Health Secretary could have had more foresight but I wonder where you think the balance lies between empowering government in those situations to make legislation without scrutiny and the scrutiny procedures that we could have?
Hugh: So Simon, that was quite a long one.
Simon: So it wasn't supposed to be.
Steph: I think I heard enough.
Hugh: Oh did you, that’s a relief.
Steph: He’s a constitutional lawyer. Yes I think it is right that when things are a genuine emergency you need to trust the government to act. So I do think probably that the early lockdown was necessary. I didn't look back at what caused that but I do think it's also a very useful cloak sometimes. So I think maybe the answer is that the decision about whether it's an emergency should be not left to one person, which it was and I think if there could be a Cabinet meeting which wouldn't be great but it'd be better than nothing or an emergency meeting in Parliament, and they could have a debate and say ‘yes, okay, this is an emergency, do what you think’. I think that would be fair enough but it is very hard because obviously we've seen a lot of unprecedented stuff in the last 3 years. But I think it's probably that, that the decision shouldn't be just subjective and unilateral.
Hugh: I think we've got time for perhaps one more question.
Carol: Hi, thank you Hugh and thank you Steph for such a wonderful lecture. I’m Carol Howells also from the Law School. As Steph might guess, I'm going to ask something about the devolved legislatures. The Senedd and the Welsh government have set out an ambition to codify the law for transparency so that all the law can be found in one place. I wonder whether you think that it would be possible to achieve transparency of that sort with laws made from the UK Parliament?
Hugh: Carol is asking your views on the proposal from the Welsh Senedd to codify their laws to make it more transparent so they can be found in one place and she's wondering if that's something that we can learn from in the English setting and would it even be possible do you think to do that?
Steph: Well having, like most of my colleagues, sat in libraries that are floor to ceiling of very, very thick books with decisions that are basically now the law of the courts, I think it would be very hard to achieve. I think it would be wonderful because it would be great if everybody could just go and look up the law without knowing anything about how to do so, they're just books called the law. But if you're going to do that you have to have a lot less detail, because one thing I did discover a little bit about is French law and there is a code, but it's much less detailed than our law. So a lot of the detail that we have now would be lost if you did that. Now you could argue about whether it's a good idea to have the law quite so detailed, or whether there should just be general principles. I don't think as the question is phrased, I don't think it would be possible, but it could be an ambition to at least do distilled essence of some of the most important laws, which in a sense is what the textbooks do. But if they’re not available to everybody because they don't tend to use language like I used tonight, they use language like the funny bit. So I think it'd be a great idea but I can't see it happening, certainly not in anybody here’s lifetime.
Hugh: Thank you Steph and I think we've got time for this one comment. So Astrid has been monitoring the chat online.
Astrid: I've got one question that's come in from our colleague, Kristen Reid, who is a Senior Lecturer in the Business School. She just says,’ Brilliant lecture. Not a question but a comment. It would be very interesting to hear your take on Brexit at some point’.
Steph: I promised didn’t I. Since I’ve been asked. I think, whatever I say I'll alienate half the population. I voted to stay in because I don't think the EU is perfect. I think there is corruption and I think there are all sorts of problems. But I think we're probably better off being in a trading block with the countries we're closest to than having arrangements to send meat as far away as you can get and still be on this planet. So if I had my vote again I'd go back but I'm not the leader of the opposition nor am I a Parliamentarian so it won't happen.
Hugh: OK well thank you. So that's all we’ve got time for. Let's give Steph another round of applause.
Dev: Thank you Stephanie for an excellent lecture. I really feel empowered now a little bit about law. I always wondered where the source of unaccountability lies. I think you've given me some hints to that and information that seems to be pervading through in the legislative procedures. So we strive for continuous improvement and we welcome audience feedback in helping to shape the series. So please do complete the feedback forms which we'll send you after the event. All that remains for us to say is thank you for joining us this evening and for always supporting the OU. For those here in person in the auditorium it is time to celebrate so please join us downstairs. Our next lecture in the series is on Thursday 20th April 12pm when Theodore Zamenopoulos, Professor of Citizen-led Design will give his Inaugural Lecture on Citizen-led Design. Details will appear on the OU Research website soon. That brings a close to this evening’s Inaugural, have a good evening.