Report from Public Law Project warns of serious deficiencies in UK law making with huge rise in statutory instruments

The UK’s withdrawal from the EU has led to a ‘tsunami’ of delegated legislation in the form of statutory instruments (SIs), according to a report by the Public Law Project.

“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,” the authors, Alexandra Sinclair and Dr Joe Tomlinson, said.

They claimed this meant that:

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

Concerns raised by the Public Law Project report include:

• Volume: During the 2017-2019 parliamentary session, 1,835 instruments were laid in total. 615 of those were Brexit SIs, representing 34% of all instruments during that session.
• “Poor and non-existent” impact assessments: There was, for example, 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 statute 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.”

The PLP said that whilst problems with SIs and the process of delegated legislation were already well documented, this report was the first time those concerns had been evaluated in the context of the Brexit process.

Dr 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.”