The Conservative Government is passing less primary legislation than its Labour predecessors, continuing the pattern established under the Coalition. But Brexit will significantly increase the UK’s legislative load.
Some departments that are not used to passing legislation – notably Defra – might have to get used to it quickly. Subjects previously dealt with via secondary legislation, such as EU directives, could also add to the primary legislative load on Parliament.
One government bill passed into law every seven sitting days in the 2015-16 session.
In its first year, the Conservative Government saw 23 of its bills pass into law, an average of 0.14 every sitting day, or one for every seven days Parliament sat. This is the second-lowest number (per sitting day) since 1997, and signals a continuation of the trend established under the Coalition, which passed fewer bills than its Labour predecessors (121 in the 2010-15 parliament, compared with 139 in the 1997-2001 parliament, 126 in 2001-05, and 157 in 2005-10).
Both the current Government and the Coalition government had more constraints on their ability to pass legislation than their Labour predecessors. Under the Coalition, bills had to be agreed between the two ruling parties before they went to Parliament. The Conservative Government elected in 2015 has a small majority, so must ensure it has the backing of its whole party if it wants a piece of legislation to pass. This is no bad thing – it is important that government prioritises, and focuses on what it really wants to achieve and will be able to implement – although Brexit means Parliament might have to get used to a heavier load again.
HMT is responsible for the most bills that become law; Brexit will increase the legislative load for some departments unused to passing primary legislation.
The work of legislating does not fall evenly across departments. Since the 2010-12 session, HMT has been responsible for the most government bills that became law (46). Only four other departments (CO, HO, MoJ, DWP) were responsible for ten or more bills that became acts in that time. Defra was responsible for only two.
Brexit will have a significant impact on the UK’s legislative landscape, and shift this legislative load. Departments with areas of responsibility currently covered by EU law – such as environmental regulation, workers’ rights and the regulation of financial services – will see their workload increase as laws have to be transferred on to the UK statute books. For example, Clare Moriarty, Permanent Secretary at Defra, has written that around a quarter of EU laws (1,200) relate to Defra, while George Eustice, Minister for Agriculture, Fisheries and Food, in answer to a written parliamentary question, added that ‘Defra is the domestic department most affected by EU exit, with some 80% of our work framed by EU legislation’.
Where the burden falls will also depend on the post-Brexit deal the UK makes with the EU. An end to freedom of movement, for example, would require the Home Office to write a new, potentially complicated immigration system into law. Such departments will have to raise their level of legal expertise accordingly.
Theresa May has announced her intention to pass a Great Repeal Bill before Britain exits the EU, transferring EU legislation into UK law where practical, allowing government to unpick or amend that legislation in its own time – although even this is proving more complex than expected. Parliament will have to get used to dealing with a heavier legislative load – and government will have to work even harder to prioritise, to make the most of the parliamentary schedule.
Most of our laws are made through secondary legislation, not acts of Parliament.
Legislation does not just consist of acts of Parliament (primary legislation). Acts often empower the government to ‘fill in the detail’ through secondary legislation – most commonly through statutory instruments (SIs). These can be accepted or rejected by
Parliament, but not amended.
SIs make up the bulk of the UK’s legislative activity: in 2015, there were 2,063 SIs laid before Parliament, and only 37 acts. The drop in SIs compared to previous years can partly be explained by 2015 being an election year – there is less parliamentary time, and more secondary legislation can be expected once a new government has presented its primary legislation.
The number of SIs passed each year has been increasing since the 1980s, while acts of Parliament have become less common. There are a number of possible explanations for this. The increase in SIs partly reflects the increasing complexity of our benefits system, which is often amended through secondary legislation. It might be that, since the 1980s, governments have put more ‘skeleton bills’ through Parliament, giving them more power to determine the details of the legislation through regulations.
EU membership has also been a key reason for the growing number of SIs, as EU directives are given effect in UK law through secondary legislation. There will be calls for some of these laws to be brought into primary legislation, so that Parliament can have a full say in new legislation on issues such as financial and environmental regulation.