Secondary legislation

The amount of secondary legislation has increased since the EU referendum. To prepare the UK statute book for Brexit, the government has had to pass a large amount of secondary legislation – predominantly in the form of statutory instruments, usually used to make technical legal changes.

Many of these have been passed using powers granted to government in the European Union (Withdrawal) Act 2018. The Act will take a snapshot of large parts of EU law at the moment the UK leaves and, together with EU-related domestic law, create a new category of UK law known as ‘retained EU law’. The Act also empowers the government to ‘correct’ this retained EU law using statutory instruments (SIs) to ensure it continues to work effectively once the UK has left the EU.[1] The scale and timeframe of the legislative task posed by Brexit made extensive use of secondary legislation inevitable, but it has been controversial.[2]

The government has introduced – or laid – slightly more SIs during the 2017–19 session than either of the two previous sessions, with 5.8 laid per sitting day, compared to only 4.8 during 2015–16 and 5.1 during 2016–17. The government has prioritised Brexit SIs over non-Brexit ones, aided by the introduction of a new sub-committee of the Parliamentary Business and Legislation (PBL) cabinet committee to co-ordinate SIs across government; 28.7% of those laid this session have been explicitly Brexit-related.*

While this figure may seem small, Brexit SIs have tended to be longer than non-Brexit ones, meaning Brexit SIs have made up a higher proportion of the total amount of secondary legislation produced.[3] The government has acknowledged that it has combined Brexit SIs into longer instruments – in an effort to address concerns about the high number originally anticipated.[4] However, simply bundling SIs together does not improve scrutiny, and the extreme length of some SIs has led the House of Lords Secondary Legislation Scrutiny Committee to question how Parliament can effectively fulfil its scrutiny function.[5]

We will look at the length of SIs and what has driven the increase in the next edition of Parliamentary Monitor.

The number of SIs has varied between departments

There has been wide variation in the number of SIs laid by different departments, reflecting the differing impact of Brexit across the government as a whole.

Brexit SIs have made up a majority of all those laid by four departments (the Department for Exiting the EU (DExEU), the Foreign Office, the Department for International Trade (DIT) and the Department for Environment, Food and Rural Affairs (Defra)). Other departments have not laid any Brexit SIs at all. These include the territorial offices – such as the Scotland Office – because much of the legislative preparation for Brexit has been undertaken by other government departments, or by the devolved administrations, rather than Westminster.

Note on figure above: Includes SIs laid by predecessor departments. The Ministry of Housing, Communities and Local Government (MHCLG) includes SIs laid by the Department for Communities and Local Government (DCLG). The Department of Health and Social Care (DHSC) includes SIs laid by the Department of Health (DH). Excludes SIs withdrawn and proposed negative SIs laid under the EU Withdrawal Act. We exclude SIs laid as proposed negatives to avoid double counting, as these are subsequently laid as negative or affirmative SIs once they have been considered by the parliamentary committees that ‘sift’ SIs under the EU Withdrawal Act. ‘Other’ includes instruments laid by the Privy Council Office, Local Government Boundary Commission for England, House of Commons, General Synod of the Church of England and the Government Equalities Office. A list of abbreviations is found at the back of this report.

While ministries historically responsible for high numbers of SIs – such as the Treasury (HMT) and the Department for Business, Energy and Industrial Strategy (BEIS) – have still introduced large numbers, other departments have seen notable changes in the amount they need to prepare as a result of Brexit. The volume of secondary legislation laid by Defra, for example, has more than doubled, from 0.27 SIs per sitting day in 2015–16[6] to 0.69 SIs per sitting day during the 2017–19 session.

The rate was particularly intense in the second half of the session – driven largely by the number of Brexit SIs for which Defra was responsible: the department laid 1.1 SIs per sitting day between 4 September 2018 and 13 June 2019. In a ranking of departments laying the largest numbers of SIs, Defra jumps from ninth place in the first year of the session to second over the session to 13 June 2019.

Other government departments have seen a drop in the number of SIs they laid per sitting day between 2015–16 and the 2017–19 session. This potentially reflects the volume of Brexit SIs squeezing out non-Brexit ones, and could also illustrate the May government’s limited domestic policy agenda. The Department for Work and Pensions (DWP), for example, saw a decrease in SIs – from 0.46 per sitting day in 2015–16[7] to 0.35 in the 2017–19 session. The Cabinet Office, Wales Office, Northern Ireland Office and the Ministry of Defence (MoD) and have also seen reductions over the same period.

Parliament has had to consider most Brexit SIs in just a few months

Brexit-related SIs began to be laid in July 2018, predominantly using powers created by the EU Withdrawal Act, which only received Royal Assent in June 2018 (having taken a year to get through Parliament). This means Parliament’s consideration of Brexit SIs has been concentrated in the latter half of the session – comprising over 50% of all SIs enacted between July 2018 and June 2019. Even then, Brexit SIs have not been laid before Parliament at even intervals[8]– despite calls from Commons and Lords committees for the government to smooth out the laying of SIs to aid parliamentary scrutiny.[9]

As the original Article 50 deadline of 29 March 2019 approached, the government actively prioritised Brexit SIs over non-Brexit ones,[10] and made several SIs using a fast-track procedure with retrospective parliamentary scrutiny.[11] While the government was confident it had passed the secondary legislation needed for exit on 29 March,**,[12] some of these SIs have since needed updating, because the EU law they relate to has changed.

The failure to pass some Brexit bills has also had implications for secondary legislation.[13] For example, the government is having to use powers in the Customs Act, rather than the gridlocked Trade Bill, to set up its trade defence function.[14]

MPs still spend little time debating SIs, but have pushed more to a vote

In Parliamentary Monitor 2018 we found that the average length of debate in Delegated Legislation Committees (DLCs) – during which MPs discuss SIs subject to the affirmative procedure, generally those deemed most important – was just 23 minutes.[15] Our updated analysis (covering SIs laid from the start of the 2017–19 session until 13 June 2019) shows that the average duration of DLCs increased slightly to nearly 26 minutes – still far short of the 90 minutes available for most debates. One notably short DLC lasted just one minute,[16] raising questions about whether DLCs provide an effective forum for genuine scrutiny, a long-standing concern for many parliamentarians.[17]

There has been a significant increase in the number of DLC meetings resulting in a formal vote (known in Parliament as a ‘division’). In the first 12 months of the 2017–19 session, just 5% of DLCs ended with a division. But the data for the whole session to date shows that 14% of DLCs ended in a vote. This suggests that Brexit SIs – which have formed the majority of SIs laid in the latter half of the session – have been more contentious, leading MPs to push them to a vote.

*For these purposes an SI is considered Brexit-related if its short title contains the term “Exiting the European Union”. This naming convention was adopted by the government to improve the traceability of EU exit SIs. Additional SIs may have been enacted as a consequence of Brexit that are not captured by the naming convention.

** At a keynote speech at the Institute for Government on 17 July 2019, former Leader of the House of Commons, Andrea Leadsom, said that almost all of the SIs needed for no deal had been passed ahead of 29 March 2019, aside from a few regarding tariffs and the single electricity market in Northern Ireland, which needed to be passed using the urgent procedure.