The year of the statutory instrument
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Marc Bloomfield
When we look back on 2019, it could be described as the year that Brexit never quite happened, the year in which we saw global populism continue to rise, or just the year of the dreadful English summer. But it could also be seen as the year that statutory instruments (SIs) reasserted their relevance in UK politics.
I am going to highlight three areas in which SIs were extremely important to political discourse in 2019. The first is immigration. Home secretary Priti Patel made headlines in her first few weeks in the job by declaring that free movement of persons would be ended by exit day. But how was she planning to do this?
Patel made the announcement at a time when the Immigration and Social Security Co-ordination (EU Withdrawal) Bill was famously stalled (it has now fallen) and it was not known how she intended to implement this policy without primary legislation. PLP (and – separately – the Institute for Government and the House of Commons Library) made the case that there did not appear to be a pre-existing power in primary legislation that would allow her to do so via SI.
We stated that the government’s Henry VIII power allowing it to change primary legislation using EU (Withdrawal) Act 2018 s8 would not assist the Home Office in ending free movement. Section 8 can only be used where there is a failure of retained EU law to operate effectively or a deficiency of retained EU law. Because ending free movement of EU nationals is not a legal inevitability that flows from the end of EU membership (the UK could, in theory, decide unilaterally whether or not to retain free movement after Brexit), the s8 power could not be used for this purpose.
On 4 September 2019, the Home Office formally announced that it no longer intended to end free movement of persons by exit day and that the majority of the UK’s free movement framework would remain in place by that date. This ‘U-turn’ (as the Guardian described it) appeared to be in part a recognition of the limitations on law-making via SI.
The second way in which SIs kept their relevance was in one of the biggest constitutional cases of the decade, R (Miller) v Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41, in which PLP intervened. Although it feels like a lifetime since the Supreme Court handed down its decision, and Brexit events have already moved on significantly, its relevance for SIs could be enduring.
PLP has been running the SIFT Project, scrutinising Brexit SIs, since January this year (see June 2019 Legal Action 9). Part of the project involves looking at the content of the SIs laid as well as at the procedures used to make them and the types of scrutiny that parliament is able to give them. This project meant that PLP was perfectly placed to intervene in the case to give evidence on the effect prorogation would have on the making of Brexit-related SIs in time for exit day. We gave evidence that while parliament was prorogued, the government could still lay affirmative resolution procedure EU exit instruments using the urgent case procedure under the EU (Withdrawal) Act 2018. Under this procedure, SIs would become law immediately and remain in force for 28 days before falling away if not debated and approved. This could result in Brexit SIs being in force on exit day without having seen scrutiny in either of the Houses of Parliament.
The effect of prorogation on parliament’s ability to inspect Brexit-related SIs formed part of the Supreme Court’s analysis of the constitutional principle of parliamentary accountability: that parliament has an important constitutional role in probing the government and holding the executive to account. The court found that the government had failed to take account of the impact prorogation would have on the ‘special procedures for scrutinising the delegated legislation necessary to make UK law ready for exit day’ (para 60). This was express recognition by the Supreme Court of the important role that SIs play in carrying out government business, and therefore of the significance of parliament having the opportunity to fully review them before they become law.
The third way in which SIs have resonated this year has been their use in holding the government to account. Pre-action letters have been sent to the government challenging Brexit SIs in the fields of medicines, chemicals and the environment. In the last week of October, the government laid the Cross-border Trade (Public Notices) (EU Exit) (Revocation) Regulations 2019 SI No 1380 after PLP had sent a pre-action letter challenging the Cross-border Trade (Public Notices) (EU Exit) Regulations 2019 SI No 1307.
PLP challenged them on the basis that they were ultra vires the Taxation (Cross-border Trade) Act 2018 because they sub-delegated powers to Treasury civil servants to change primary legislation via public notice. Effectively, this would have allowed unelected officials to change primary legislation by proclamation and went well beyond what was intended by parliamentarians when they passed the Act. The government’s revocation of these regulations was recognition that the SI was ultra vires the parent Act and susceptible to challenge.
The takeaway from all of this is that during a year when it was challenging for the government to get primary legislation through, SIs took on renewed importance. It remains to be seen whether the general election will change this environment and mean the government can get through its business via primary legislation. If a parliamentary majority is not forthcoming, the lessons of 2019 will be highly relevant for how SIs are used in 2020.

About the author(s)

Description: Alexandra Sinclair - author
Alexandra Sinclair is Fellow in Brexit, Parliament and the Rule of Law at Public Law Project.