Secondary legislation

As government has grown more complex, it has made greater use of powers delegated to it by Parliament to use secondary legislation as a means of fleshing out the detail of primary acts. This has led to concerns that government relies too much on secondary legislation – which receives less scrutiny than primary legislation – pushing at the limits of executive power. At the same time, there are questions about the effectiveness of the processes through which Parliament scrutinises secondary legislation.

The Government’s use of secondary legislation (also known as Statutory instruments) to prepare the UK statute book for Brexit has brought these issues to the fore. Through the EU Withdrawal Act, the Government has given itself broad powers to make secondary legislation, and to use it to make changes to existing acts – so-called Henry Viii powers. But there is concern that Parliament may struggle to adequately scrutinise the 800 additional pieces of secondary legislation that the Government has identified as necessary for Brexit, particularly if it must do so by March 2019. This is despite the Government agreeing to establish an additional Commons committee to scrutinise Brexit-related secondary legislation.

 

Governments’ use of secondary legislation has grown considerably over time

Secondary or ‘delegated’ legislation (most of which are Statutory Instruments, or SIs) is made by ministers – and occasionally public bodies – using powers delegated to them by acts of Parliament. It is often detailed and technical, and is used to flesh out the details of primary legislation. For example, where a primary act may establish a particular benefit, secondary legislation may be used to uprate the benefit each year. Given that secondary legislation deals with the detail of policies for which the principles have been approved in primary legislation, it is generally subject to less parliamentary scrutiny.

UK Acts and Statutory Instruments, 1950–2016 (calendar years)

Over time, the use of secondary legislation by governments has grown considerably – though as the Hansard Society notes, data is often ‘patchy and inconsistent’, and must be pieced together from a range of sources which define and count secondary legislation differently. [1] An upward trend in the volume of secondary legislation began in the 1980s, in part reflecting the increased complexity of primary legislation, especially on issues such as benefits – meaning more pieces of secondary legislation were needed to fill out detail. The need to put EU law onto the UK statute book also drove an increase in the quantity of secondary legislation.[2] At the same time, the volume of primary legislation followed a broadly downward trend.

Measured on a calendar year basis, the number of pieces of secondary legislation rose to a high of 4,150 in 2001. Between 2010 and 2015 there were, on average, over 3,000 pieces of secondary legislation passed each year – far greater than the quantity of primary legislation. In 2015 and 2016, numbers fell significantly, reaching their lowest point since 1950 in 2016 – likely to be a result of the brevity of the 2015/16 parliamentary session.[3] Data on the length of pieces of secondary legislation is only available up until 2009, but in that year almost 12,000 pages of secondary legislation were passed, compared with fewer than 4,000 pages of primary acts.[4]

Secondary legislation will be of particular importance in readying UK law for Brexit. The Government estimates that, to ensure the UK statute book will continue to work after Britain leaves the EU, around 800 pieces must be passed at Westminster (not including the separate legislation required to correct Scotland-only and Wales-only legislation) – raising longer-term questions about the appropriateness of government’s use of secondary legislation and the effectiveness of scrutiny procedures.[5]

 

The Treasury was responsible for one in eight pieces of secondary legislation

Number of pieces of secondary legislation tabled by government departments, 21 June 2017–21 June 2018

There were 840 pieces of secondary legislation laid before Parliament in the year following the 2017 Queen’s Speech; an average of five per sitting day.* Of these, one in eight (110) came from the Treasury. This is unsurprising; the Treasury is the government department that is usually responsible for the greatest volume of primary legislation each session, in the form of Finance Acts and Supply and Appropriation Acts. These acts provide powers for the Treasury to make secondary legislation, particularly as much of what they contain is likely to need fleshing out with very technical detail. The other busiest departments in terms of laying secondary legislation were the Home Office (77) and the Department for Business, Energy and Industrial Strategy (BEIS) (75).

Brexit means that some departments whose work is currently framed by EU legislation will have to pass more secondary legislation, to ensure that law continues to work. According to research by the National Audit Office, BEIS will need to lay 150 pieces of secondary legislation in readiness for Brexit; while the Department for Environment, Food and Rural Affairs (Defra) will need to lay 95.[6] The Department for Exiting the EU (DExEU) did not lay any pieces of secondary legislation in the year following the 2017 Queen’s Speech – as a new department its ministers had to wait for the enactment of the EU Withdrawal Act in late June 2018 to receive any secondary legislation-making powers. In early July, the then-DExEU minister Steve Baker MP signed off the first piece of secondary legislation made under the Withdrawal Act.[7] The Department for International Trade (DIT), another key Brexit department, was able to pass a small number (five) pieces of secondary legislation over the period.

* A small number of pieces of secondary legislation are laid by non-government organisations, including the General Synod of the Church of England; the Local Government Boundary Commission; the Privy Council Office; and the House of Commons itself. Together these organisations were responsible for just 71 pieces of secondary legislation between June 2017 and June 2018, reflecting the specific nature of the secondary legislation they pass. In Figure 4.2 these organisations are grouped as ‘Other’.

 

Most secondary legislation is subject to the less rigorous ‘negative’ scrutiny procedure

The authority for ministers to make secondary legislation is contained in ‘parent’ primary acts. The passage of those acts is the opportunity for Parliament to decide whether it is happy to grant government the powers it is seeking. Acts also set out the scrutiny procedure to which secondary legislation will be subject. Pieces of secondary legislation are drawn up and then (other than in some specific instances) laid before both Houses of Parliament. The two main scrutiny procedures to which it is subject are known as ‘negative’ and ‘affirmative’ – though the Lords Constitution Committee has identified 16 variations on these processes.[8]

Of the secondary legislation laid before Parliament, most is subject to the negative procedure. Under this, a piece of secondary legislation becomes law as long as neither House objects within a given time period. Usually, a piece of legislation subject to negative procedure is ‘made’ (signed off) by the relevant minister and then laid before Parliament. It then becomes law unless it is annulled within 40 days. In the Commons, this can happen by the House agreeing a motion to annul, referred to as a ‘prayer’, which is usually tabled in the form of an Early Day Motion. In the Lords, peers may also table a motion to annul a piece of secondary legislation.

Of the 840 pieces of secondary legislation laid by the Government in the year since the 2017 Queen’s Speech, 619 (74%) followed the negative procedure. Just 14 pieces of secondary legislation were not subject to any procedure.*

In recent years concern has been expressed, including by the Hansard Society, about whether secondary legislation subject to the negative procedure is adequately scrutinised.[9]

*The majority of which were laid by the Privy Council.Negative SIs tabled, prayed against, and debated in the Commons, 21 June 2017–21 June 2018

In the year since the State Opening of Parliament, MPs objected to just 2% (14) of the 619 pieces of secondary legislation subject to negative procedure laid before Parliament.

While any MP may table a prayer to annul a piece of secondary legislation, the Government is under no obligation to find time for the prayer to be debated in the House. Time is more likely to be found for debate if the prayer is tabled by the Official Opposition, though previous research has shown this is still no guarantee of debate.[10] Of the 14 prayers tabled since the 2017 Queen’s Speech, just over half (nine) were then debated on the floor of the House, meaning that only 1.5% of all pieces of secondary legislation subject to negative procedure laid in the year since the Queen’s Speech were debated on the floor of the House. But all of these pieces of secondary legislation, and all others subject to negative procedure laid by the Government, became law. This is not unusual: in recent parliamentary sessions, a similarly low number of pieces of secondary legislation were debated.[11]

Government control of parliamentary time can limit opportunities for scrutiny of secondary legislation. Of the nine pieces of secondary legislation debated, seven were given time by the Government and two were the subject of an Opposition Day debate in September 2017. The latter two pieces – both relating to higher education – were tabled on the day before Christmas recess in 2016. After the Opposition tabled a prayer to annul them, the Government agreed to find time for a debate. However, Parliament was dissolved for the 2017 General Election before the Government had found time for this to happen. But by that time, the statutory period within which the instruments could have been ‘prayed’ against effectively had expired. The Opposition was only able to table for debate a motion that the instruments be revoked, which if passed would not have had any statutory effect. Generally, government has been expected to make time available to debate prayers which are still ‘in time’.[12]

In the Lords, where government has less control of parliamentary time, the situation is different. Prayers tabled against pieces of secondary legislation subject to negative procedure in the Lords are more likely to be debated, and peers are able to table a broader range of motions, including motions of regret, which are not fatal to a piece of secondary legislation, but allow peers to register their concerns with it. Peers normally table non-fatal motions.[13]

In the year from the 2017 Queen’s Speech, 16 motions of regret were debated in the Lords Chamber. Most of these motions were withdrawn following a debate in which peers were able to express their views; but in five cases the motion was pressed to a division. The House agreed to three of these motions of regret – meaning three defeats for the Government. One motion to take note of a piece of secondary legislation was debated in Lords Grand Committee, which was also agreed. This debate picked up on a report on the Criminal Justice (European Investigation Order) Regulations 2017 by the Lords Secondary Legislation Scrutiny Committee, who highlighted that the Home Office had failed to respond to a request from the Committee for more information after seven weeks.[14] The peer who tabled the motion, Lord Rosser, stated at the end of the debate that he felt the House had “some duty” to ensure such reports are debated.

It is highly unusual for a piece of legislation subject to negative procedure to be annulled by either House. The Commons has not resolved to annul a piece of secondary legislation since October 1979; and the last time that the Lords opted to reject a piece of legislation subject to negative procedure was in February 2000.[15] The rarity of annulments may reflect that most secondary legislation is necessary and of a high quality. But it could also suggest that Parliament is not bothering to make use of a procedure it knows to be ineffective. Detailed research analysing the outcome of secondary legislation, and parliamentarians’ attitudes towards it, would be necessary to determine why so few pieces of secondary legislation are annulled.

 

There are also concerns about the adequacy of existing scrutiny procedures for secondary legislation subject to affirmative procedure

A much smaller proportion of secondary legislation (206 pieces – around a quarter – in the year from the 2017 Queen’s Speech) is subject to the more thorough ‘affirmative’ scrutiny procedure.

Secondary legislation that is subject to the affirmative procedure must be actively approved by both Houses in order to become law, though pieces of secondary legislation on financial matters only need to be approved by the Commons, due to its privilege in financial matters. Active approval means being debated in a committee (in the Commons) or the whole House (in the Lords) on a motion that the legislation has been considered. Number of Delegated Legislation Committees, by duration, 21 June 2017–21 June 2018

In the Commons, most pieces of secondary legislation subject to affirmative procedure are considered in Delegated Legislation Committees (DLCs). A total of 173 pieces of secondary legislation were considered in 137 such committees in the year following the 2017 Queen’s Speech.

DLCs are usually composed of between 16 and 18 MPs, appointed ad hoc for each instrument or group of instruments, and chaired by a member of the Panel of Chairs. Debates in DLCs can last up to 90 minutes (or 150 minutes if the piece of secondary legislation relates only to Northern Ireland).[16]

However, committees typically spend considerably less time than this scrutinising secondary legislation. In the year since the State Opening of Parliament, the average duration of a DLC was just 23 minutes. Almost a quarter of committees (33) met for less than 10 minutes. On average, each piece of secondary legislation was considered for just 18 minutes. This is not unusual: research by the Hansard Society found that the average duration of a DLC in the 2015/16 parliamentary session was 26 minutes.[17] This raises questions about the relative amount of time afforded to the scrutiny of affirmative and negative secondary legislation. As the Hansard Society has pointed out, much of the time allotted to DLCs goes unused, while time is rarely found to debate prayers tabled against secondary legislation subject to negative procedure.[18]

MPs have reported that serving on a DLC is considered to be a punishment – and some have even reported being encouraged by whips to remain quiet, and to use such meetings as an opportunity to get on with their correspondence.[19] Participating MPs receive little briefing that might enable them to prepare for the debate, beyond the explanatory memorandum provided with the piece of secondary legislation.[20]

Concerns about whether DLCs really conduct meaningful scrutiny are reinforced by the small proportion of committee debates that result in a division. Just seven of the 137 sittings of DLCs in the year following the Queen’s Speech (5%) ended in a division.* The low number of divisions and brevity of DLC debates may be an indication that the secondary legislation laid by the Government was uncontroversial. But it also suggests that DLCs have become more of a formality than a serious source of parliamentary oversight of secondary legislation.

There are other questions about the effectiveness of the affirmative procedure. In DLCs, votes may only be held on the motion that the Committee has ‘considered’ the piece of secondary legislation. Once this has happened, the motion to approve a piece of secondary legislation is put ‘forthwith’ on the floor of the House – meaning that the motion is put on a different day to the DLC, and without debate. This means that the House votes following a DLC debate that most MPs have not been part of (and they are unlikely to have read the transcript of the debate).[21] All the motions put to the whole House in the year following the Queen’s Speech were agreed to.

While secondary legislation subject to affirmative procedure in the Commons is usually automatically referred to a DLC, a small amount is instead debated on the floor of the House. Just three pieces of secondary legislation were dealt with in this way in the year following the 2017 Queen’s Speech – and none of these debates ended in a division. Rejection of secondary legislation subject to affirmative procedure is even more rare: the last time it occurred in the Commons was in July 1978.

In the House of Lords, affirmative secondary legislation is either debated in the Chamber, or in Grand Committee. In the Chamber, the piece of legislation is debated on a motion to approve; if debated in Grand Committee, it is debated on a motion that the legislation has been considered. The formal motion to approve the legislation is then put forthwith in the Chamber on a later day. There were 107 debates on affirmative secondary legislation in the year since the 2017 Queen’s Speech, of which slightly more than half (56) were in the Chamber. On average, debates on affirmative delegated legislation in the Lords lasted 26 minutes – just three minutes more than in Commons Delegated Legislation Committees. In all cases the legislation was agreed to. However, on a handful of occasions peers tabled amendments to motions to approve SIs, to regret some aspect of the legislation, and then withdrew their amendments following debate – again allowing them to use the debate to air their concerns.

The House of Lords has shown itself more willing to challenge affirmative secondary legislation. At the end of October 2015, the House of Lords withheld approval of an affirmative SI on tax credits (which had already been approved by the Commons). In response, the then Prime Minister asked Lord Strathclyde, a former Leader of the Lords, to carry out a review of the Lords’ powers in relation to secondary legislation. The Strathclyde Review was published in December 2015. It offered three options for reform, including the option favoured by Lord Strathclyde – to create a new procedure watering down the influence of the Lords over secondary legislation. Set out in statute, this would stop the Lords being able to reject secondary legislation; instead allowing the Upper House only to invite the Commons ‘to think again when a disagreement exists [about a piece of secondary legislation] and insist on its primacy’. 

In the first half of 2016, the Secondary Legislation Scrutiny Committee (SLSC) published a response to the review which rejected all three options.[22] The Government published its own response to the review, and to the committee’s report in December 2016, saying that they would not legislate along the lines of Lord Strathclyde’s favoured option in the 2016/17 Session, but would leave open the possibility of taking up that option at a later date.[23]

When Parliament passes acts requiring ministers to subject secondary legislation to the affirmative procedure, it does so because it believes that the powers need more intensive scrutiny. But the small amount of time for which such legislation is debated in the Commons, and the rarity with which it is rejected in either House, mean it is not clear that this greater scrutiny is happening.

* Some DLCs may have more than one division: for example, in a DLC on 25 January 2018, there were three divisions. Figures given here are for the number of committees in which there were divisions.

 

Scrutiny committees provide a check on the quality of secondary legislation brought forward by government

In both the Commons and Lords, committees exist specifically to scrutinise secondary legislation. Some committees focus on the technical quality of secondary legislation and whether its provisions are in line with the powers granted to government by the parent act; others are more concerned with the merits of secondary legislation, and how well it fulfils its policy aims:

The Joint Committee on Statutory Instruments (JCSI) is composed of members from both the Commons and Lords. It meets weekly to consider all secondary legislation made through powers granted in primary legislation. Its main focus is on technical quality, including whether a piece of secondary legislation is well-drafted. Where the JCSI has concerns about a piece of secondary legislation, it may choose to bring it to the attention of both Houses.

The Select Committee on Statutory Instruments (SCSI) plays the same role as the JCSI, but is comprised only of Commons members. It looks at the technical quality of secondary legislation which is not subject to Lords proceedings – mainly that relating to financial matters, where the Commons has privilege.

The Secondary Legislation Scrutiny Committee (SLSC) is a Lords committee which examines all secondary legislation laid before the Lords, as well as Public Bodies Orders, a specific form of secondary legislation. The SLSC focuses on the policy merits of secondary legislation, and may choose to bring it to the attention of the House on several grounds (for example, that the explanatory material accompanying it isn’t good enough, or that it ‘imperfectly’ achieves its objective)

In the year following the 2017 Queen’s Speech, each scrutiny committee considered varying numbers of pieces of secondary legislation, reflecting their different remits.

 Number of pieces of secondary legislation considered, and reported, by parliamentary scrutiny committees, 21 June 2017–21 June 2018

The JCSI considered 832 pieces of secondary legislation, of which 79 (9%) were drawn to the attention of both Houses of Parliament. Reasons for this reporting varied (note that some pieces of secondary legislation may be reported for multiple reasons), but included secondary legislation being defectively drafted, and failing ‘to comply with normal legislative practice.’ Reflecting its remit, the SCSI examined only 84 pieces of secondary legislation, not drawing any to the attention of the Commons.

The SLSC considered 786 pieces of secondary legislation; of which it chose to draw 8% (59) to the attention of the Lords. The Committee also regularly highlighted pieces of secondary legislation as being “of interest” to the House. This can be a means for the SLSC to flag problems with the way government is producing secondary legislation. For example, the committee highlighted one piece of secondary legislation from the Foreign and Commonwealth Office (FCO) on the basis that it was the department’s fourth attempt to pass the same piece of secondary legislation, urging the FCO “to review their clearance processes to ensure that future instruments are more thoroughly checked before they are laid before Parliament”.[24]

Government has made efforts in recent years to improve the quality of secondary legislation, creating a secondary legislation hub in the Cabinet Office in 2014 to improve drafting, and since 2016 implementing a series of measures to improve the quality of explanatory material laid in support of secondary legislation. Proposals for affirmative instruments are also now required to be cleared by the Parliamentary Business and Legislation Cabinet Committee before being laid. This illustrates the impact that committees can have on government: the hub was created as a result of the SLSC identifying an increase in the number of ‘correcting’ instruments, and the measures to improve explanatory material were taken following an evidence session between the SLSC and three permanent secretaries.[25] As well as scrutinising individual instruments, committees can take a broader view of the quality of the secondary legislation that government is producing and make suggestions for improvement.

The small proportion of secondary legislation which scrutiny committees drew to the attention of Parliament may indicate that the Government is generally producing secondary legislation of a high quality, which is in line with the powers granted to them in parent acts, and which fulfil their policy aims in a reasonable way.

 

Brexit has renewed debates about government’s use of secondary legislation

Since the 2017 Queen’s Speech, as well as introducing primary legislation relating to Brexit, the Government has been laying the groundwork to use secondary legislation to prepare the UK statute book for the UK’s exit. It has done this by passing primary legislation giving ministers extensive powers to change UK laws using secondary legislation. These have included so-called ‘Henry VIII powers’, which allow ministers to make changes to primary legislation using secondary legislation.

The Government has argued that these powers are necessary for two reasons: to deal with the uncertainty of the negotiation process; and to make the scale of the changes required to the statute book in time for EU exit in March 2019.

Originally, the Government argued that negotiations over the UK’s withdrawal from the EU might be concluded only very shortly before the Article 50 two-year time limit expired. In these circumstances it would not be possible for Parliament to pass primary legislation to give effect to the legal changes required to give effect to the agreement, so the speed and flexibility of secondary legislation-making powers would be required. The Government’s original estimate was that to provide for this scenario 800–1,000 pieces of secondary legislation would need to be passed before 29 March 2019. There was widespread alarm in Parliament at the scale and breadth of the powers that Government planned to take, which included a power to amend the EU Withdrawal Act itself using secondary legislation. One scrutiny committee noted that the Withdrawal Bill as introduced gave ministers ‘wider Henry VIII powers than we have ever seen’.[26]

Two things have since changed. First, the Government accepted that it would be inappropriate to give effect to the significant legal provisions likely to be included in any withdrawal agreement purely using secondary legislation. It committed to introducing a ‘Withdrawal Agreement Bill’ to give effect to any withdrawal agreement. This ‘WAB’ would reduce the amount of secondary legislation required, although it is not clear by how much.

Second, the draft Withdrawal Agreement currently being negotiated includes provision for a ‘standstill’ transition period until December 2020, during which the UK statute book would not need to change. This transition would extend the time available for Parliament to pass the secondary legislation required to prepare for the UK’s life outside the EU. Again, it is unclear how much secondary legislation would still need to be in place before 29 March 2019.

However, because it is not guaranteed that the UK and the EU will agree a Withdrawal Agreement within the timeframe required by Article 50, the Government is continuing to plan for the possibility of a ‘no deal’ exit with no transition. In legislative terms this means that Whitehall departments are continuing to work on the basis that the UK’s statute book needs to be prepared for exit on 29 March 2019 without any further primary legislation (the Withdrawal Agreement Bill) or transition period.

 

Parliament has expressed concern over the Government’s use of secondary legislation for Brexit

The Government’s approach to legislating for Brexit using secondary legislation has generated concern in three areas:

  • The balance between what the Government has tried to do using primary legislation and secondary legislation.

  • The shortcomings of parliamentary processes for scrutinising secondary legislation, and the relatively limited attention paid to it by many parliamentarians.

  • The capacity of Parliament to pass the volume of secondary legislation required within the shrinking window of time available to do so.

The first concern – that the Government has tried to use secondary legislation to do things that would normally only be possible using primary legislation – links to a longstanding debate about where governments draw this line. Many of the peers who voted to reject the Government’s tax credits SI in 2015, as discussed above, did so because they felt that the Government was going beyond what Parliament had intended when creating the power to adjust the level of tax credits using secondary legislation. Prior to the decision to leave the EU, the Lords Constitution Committee expressed concern about the use of ‘skeleton’ bills giving ministers ‘broad and undefined delegated powers to achieve legislative objectives, but [which] contain few restrictions as to how secondary legislation should be framed to achieve those goals.'[27]

Before the EU referendum, the Lords Constitution Committee had also objected to a growth in the use by successive governments of ‘framework’ bills – pieces of primary legislation that are ‘light in content but heavy in delegated powers'[28] and give ministers powers to make further provisions through secondary legislation.[29] The Committee had also objected to the growing number of bills including Henry VIII powers – the most powerful secondary-legislation making powers. Having previously been unusual, these had become relatively common.*

In relation to the EU Withdrawal Bill, some parliamentarians were suspicious that, having taken sweeping powers, ministers might attempt to use secondary legislation to make significant policy changes relating to the UK’s exit from the EU without the scrutiny that would normally have required the passage of primary legislation. The Lords Constitution Committee argued that the breadth of the powers the bill contained ‘pushes at the boundaries of the constitutional principle that only Parliament may amend or repeal primary legislation’.[30]

The second concern about the Government’s approach to legislating for Brexit has been that Parliament’s processes for scrutinising secondary legislation are not adequate. Again this reflects longstanding concerns about these processes. As discussed in this chapter, and elsewhere, the problems with Westminster’s scrutiny of secondary legislation include:

  • Secondary legislation cannot be amended, only rejected outright, and that hardly ever happens.

  • Around three quarters of secondary legislation is subject to negative procedure and is therefore not actively scrutinised by Parliament unless someone objects. Even if someone does object, government or opposition has to find time for a debate to happen.

  • Even secondary legislation subject to affirmative procedure may only be debated for a short time by a small group of parliamentarians who may have no interest or expertise in the subject matter.

  • The scrutiny processes of the two Houses are entirely independent – they do not have to agree on secondary legislation between themselves in the same way they would through ‘ping pong’ on a bill.

The third concern about the Government’s approach to using secondary legislation in the Brexit process relates to the capacity of Parliament within the time available to provide adequate scrutiny of the 800 to 1,000 pieces of secondary legislation the Government has said need to be in place before March 2019.

During the passage of the EU Withdrawal Bill, these three areas of concern were extensively debated and the bill was amended in the Commons to create a new SI scrutiny committee – the European Statutory Instruments Committee (ESIC). The amendments were tabled by the Chair of the Commons Procedure Committee at committee stage, reflecting a report produced by the Procedure Committee on the scrutiny of secondary legislation laid under the EU Withdrawal Bill.[31] Though the Lords debated amendments that would have strengthened the committee, these were rejected.

ESIC has 16 members, and on 23 July 2018 chose Sir Patrick McLoughlin MP as its Chair.** Its role will be to examine and report on proposals for pieces of secondary legislation subject to negative procedure to be made under the EU Withdrawal Act – which ministers must lay before the House. The SLSC will perform the same sifting function for the House of Lords. The committees may recommend that a piece of secondary legislation the Government believes should be subject to the negative procedure should actually go through the affirmative procedure. Their recommendations will not be binding on the Government; though if the Government disagrees and chooses to disregard their recommendations, the relevant minister must make a written statement. Members will then be able to object to the negative SI in the usual way.

The fact that the recommendations of the ESIC and SLSC will not be binding raises questions about whether the Government will listen. The Commons Procedure Committee suggests that there will be ‘strong political obligation’ on ministers, and given the renewed interest in secondary legislation that Brexit has sparked, this may prove to be the case.[32] But as the Hansard Society has pointed out, the broader debate over secondary legislation that has been sparked by Brexit and the EU Withdrawal Act has served to highlight longer-term flaws in the way that secondary legislation is scrutinised.[33]

* There is no official count of Henry VIII powers, although some external organisations have attempted to assess the frequency of their use. In the 2015/16 parliamentary session, according to one estimate, 16 of the 23 government bills that made it onto the statute book contained Henry VIII powers (some 70%).

** The Chair will also be appointed to the Liaison Committee.

 

Looking forward

  • Parliament faces the challenge of giving an estimated 800 pieces of Brexit-related secondary legislation appropriate levels of scrutiny, while ensuring they are passed in a timely manner. As the European Statutory Instruments Committee begins its work, it will become clear whether the Government is willing to listen to the recommendations of the committee.

  • The focus that Brexit has put on secondary legislation should maintain pressure for Parliament to make scrutiny of secondary legislation more effective. Key to this will be engaging parliamentarians in the process

  • The precedent set by the Government’s use of Henry VIII powers to deliver Brexit may have shifted the balance of power between government and Parliament in relation to the scrutiny of legislation.