Published:  13th October 2020

The process of leaving the EU has laid bare serious deficiencies in the UK’s system of law making, according to a report by the Public Law Project.

READ: Plus ça change: Brexit and the flaws of delegated legislation system
 By Alexandra Sinclair and Dr Joe Tomlinson, Public Law Project

The authors show that the UK’s withdrawal led to a ‘tsunami’ of delegated legislation in the form of statutory instruments (SIs). These are laws which, unlike Acts of Parliament are often not debated or scrutinised, cannot be amended, and are virtually impossible for MPs to stop.

  • Policy change made by the ‘back door’ avoided Parliamentary scrutiny
  • Hundreds of laws were ‘rubber stamped’ with MPs and Peers powerless to stop them
  • Government had a ‘free-hand’ to put regulations into law-making

Concerns raised by the report include:

  • Volume: During the 2017-2019 parliamentary session, 1,835 instruments were laid in total. 622 of those were Brexit SIs, representing 34% of all instruments during that session.
  • The Word count of Treasury and HMRC SIs increased by 300% between 2009-2019 & 2017-2019
  • The average page length of an EU Exit SI was 18 pages; that is almost double the average for 2015-2016
  • Poor and non-existent impact assessments: There was no impact assessment made on massive changes to the UK chemicals regime which makes up 7% of UK GDP. The Secondary Legislation Scrutiny Committee relied on a BBC News article to assess the impacts of the legal changes of the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019
  • Henry VIII powers: 142 of the 622 Brexit instruments were used to amend primary legislation that had already been passed by Parliament
  • Lack of debate: The Government used the urgency procedure 30 times. This process gives SIs legal effect immediately, before they have been debated
  • The Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019 were 26 pages, made 36 different amendments to existing legislation and was debated for 11 minutes in the Commons
  • Errors and mistakes: In the 2017-2019 session, the proportion of instruments needing correction more than doubled. 97 SIs were laid before Exit Day to fix the mistakes of earlier SIs

Dr Joe Tomlinson, Research Director of the Public Law Project said:

“During the withdrawal process, thousands of pages of complex laws and regulations were ‘rubber-stamped,’ with MPs – let alone the general public – having little chance of understanding what laws were passed. There was no serious chance of stopping any of them from reaching the statue books.

“The reality is that this gave the Government a free hand in law-making and Parliament provided little scrutiny.”

“Much of Brexit legislation was highly technical and well-suited to a streamlined process, which is what the system of delegated legislation is there to provide. On the whole, it could be said the system coped well despite all of the pressures, but the Brexit process brought many of its problems to the fore.”

Bills (primary legislation) are debated thoroughly by both Houses of Parliament and in committee and can be amended, Statutory Instruments (SIs) are debated for a fraction of the time (if at all), and cannot be amended.

Whilst problems with SIs and the process of delegated legislation are already well documented, this report is the first time those concerns have been evaluated in the context of the Brexit process.

“It is the combination of deficiencies that is most concerning. SIs are not meant to bring about important changes in policy because of the lack of scrutiny they allow, but many did exactly that. Combining that feature with their complexity, volume, lack of scrutiny, and the widespread absence of consultation and meaningful participation, meant that Parliament was shut out of a significant part of law-making.

“Over 620 Brexit SIs were laid during the period up to Exit Day, and it is clear that many more will be needed as the process continues. Those instruments touched on every part of UK life, from food safety to immigration to transport. Very significant policies such as alterations to deportation thresholds and changes to social security law were placed in secondary legislation with no explanation as to why and no mechanism to check the Government’s decision to do so.”

Towards reform

Dr Joe Tomlinson said: “The problems with our system of law making are now arising in relation to COVID-19. Addressing these problems should be at the core of the contemporary reform agenda within Parliament.

“The moment is ripe for incremental reform that will foster the making of better law in a

modern state that often needs to make lots of law quickly.”

If you would like to follow up on any of the issues raised in the report, please contact our Research Fellow Alexandra Sinclair, a.sinclair@publiclawproject.org.uk