Brexit puts delegated legislation back on the agenda
Marc Bloomfield
It is well known that most of the UK’s laws are made not by Acts passed through parliament but instead via delegated legislation. For many decades, the number of laws made via delegated legislation (commonly made using statutory instruments (SIs)) has dwarfed the number made via primary legislation.
There have long been democratic legitimacy concerns with this model of law-making. When laws are passed via parliament, MPs are accountable to the people for those laws, whereas delegated legislation made by the executive is generally made by unelected officials. Delegated legislation does not go through the same parliamentary scrutiny process: SIs subject to the negative procedure become law without needing to progress through parliament at all.
These old concerns gained new prominence when sweepingly broad powers were given to the executive under the EU (Withdrawal) Act 2018 (EU(W)A) to make regulations amending swathes of primary legislation. The House of Lords Delegated Powers and Regulatory Reform Committee said that the EU (Withdrawal) Bill, as it then was, contained ‘wider Henry VIII powers than we have ever seen’ and that the principal clause on delegated powers was ‘notable for its width, novelty and uncertainty’ (3rd report of session 2017–19. European Union (Withdrawal) Bill, HL Paper 22, 28 September 2017, para 9, page 5 and para 15, page 7; see also para 1, page 3). EU(W)A s8 gives ministers the power to ‘make any provision that could be made by an Act of Parliament’ to ‘prevent, remedy or mitigate’ any failure of retained EU law to operate ‘effectively’, or any other ‘deficiency’ in retained EU law, arising from the withdrawal of the UK from the EU. Nowhere in the Act are the terms ‘prevent, remedy or mitigate’ defined.
In the wake of the passage of the EU(W)A, the Public Law Project established the SIFT Project (Statutory Instruments: Filtering and Tracking) in partnership with the Hansard Society, the experts on legislative process. The aim was to examine the SIs made to facilitate Brexit, in order to check they conformed to public law standards and did not undermine fundamental rights. The project has now been running for four months and some trends are starting to appear from the project’s work.
At the time of publication, some 527 Brexit-related SIs had been laid since the EU(W)A received royal assent on 26 June 2018:
362 SIs have been laid using powers in the EU(W)A only;
102 have been laid solely using powers in other Acts of Parliament; and
63 have been laid using a combination of powers in the EU(W)A and in other Acts of Parliament.
This is a lot of law-making in a short space of time. The pressure is clearly having an effect too. As the government revised down the numbers of SIs required to implement Brexit (from estimating 800–1,000 to 550 (Hansard HC Business of the House vol 657, col 1260, 4 April 2019)), the SIs have tended to become longer. Longer SIs, as well as SIs comprising disparate subject matters, can make their effective scrutiny by parliamentarians more difficult.
Sifting through SIs, it becomes clear that they are being used to facilitate policy changes. When the EU(W)A was progressing through parliament, the government was at pains to reassure those concerned about the breadth of the delegated powers within the Act that the SIs made under it would not be ‘a vehicle for policy changes’ (Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, Department for Exiting the European Union, March 2017, page 7; see also para 3.10, page 22 and para 3.17, page 23). It was stated that the powers under the EU(W)A would only give ‘the government the necessary power to correct or remove the laws that would otherwise not function properly once we have left the EU’ (ibid, page 7). There are multiple examples we have found where the government appears to have gone beyond mere correction (see, for example, the removal of the equal treatment provision from the Social Security Coordination (Regulation (EC) No 883/2004, EEA Agreement and Swiss Agreement) (Amendment) (EU Exit) Regulations 2019 SI No 722).
By laying them using pre-existing powers, 76 Brexit-related SIs have avoided additional scrutiny by the European Statutory Instruments Committee.
Another interesting development is that the EU(W)A, despite attracting considerable attention, has come to be only part of the delegated legislation story around Brexit. Some 102 Brexit SIs have been laid solely using non-EU(W)A powers; of these, 76 were made using the negative resolution procedure. The government already had generous powers to amend primary legislation, even before the unprecedentedly wide delegated powers enshrined in the EU(W)A. One of the difficulties with this is that the EU(W)A contains additional scrutiny procedures and the European Statutory Instruments Committee does an initial sift of all negative SIs laid under the Act. By laying them using pre-existing powers, 76 Brexit-related SIs have avoided this additional scrutiny procedure.
The above raises only a few of the issues that the SIFT Project is uncovering. While many of the SIs for Brexit have now been laid, our analysis is just getting started. Not only is there much analysis still to be done on the SIs themselves and the scrutiny process, there is also a need to study the long-term outcomes. The effects of the present wave of rapid law-making will only become apparent in the future.
Please contact the SIFT Project if you have any thoughts or concerns about SIs facilitating Brexit.

About the author(s)

Description: Alexandra Sinclair - author
Alexandra Sinclair is a Research Fellow at the Public Law Project and a PhD candidate at the London School of Economics.