Legislation to enable Brexit is progressing through Parliament. This includes the Immigration and Social Security Bill, the Fisheries Bill, the Financial Services (Implementation of Legislation) Bill, and the Healthcare (International Arrangements) Bill. One curious aspect of this raft of new law is that, at the same time these Bills are making their way through Parliament, statutory instruments (SIs) addressing some of the very same subject matters are also being laid. While this approach may find justification in some contexts, we argue in this post that the particular way this is being executed in some circumstances seems broadly at odds with the Government’s own stated approach to the process.

When the European Union (Withdrawal) Act 2018 (EUWA) was progressing through Parliament, the Government was at pains to reassure those concerned about the breath of the delegated powers within the Act that the SIs made under it would not be ‘a vehicle for policy changes.’ It was stated that the powers under EUWA only gave ‘the Government the necessary power to correct or remove the laws that would otherwise not function properly once we have left the EU.’ Such expectations have been reinforced in various ways and in a range of forums since. For instance, the Government has given evidence to at least one Committee that it cannot make some of the changes to UK law proposed by civil society organisations via SI because policy changes are not permitted within the EUWA powers. In contrast to what the Government has suggested repeatedly, the reality of the exercise of the EUWA powers is that Brexit SIs are being used to, at least in some places, give effect to significant policy changes.

One example of this gap between expectations and reality is The Immigration, Nationality and Asylum (EU Exit) Regulations 2019 (‘INA Regulations’), which make significant changes to the immigration system. The Regulations revoke swathes of retained direct EU legislation, including European Union Regulation 604/2013 (commonly known as the Dublin III Regulation). This Regulation is the mechanism by which the UK currently returns asylum seekers to other European countries and under which asylum seekers may be transferred to the UK to have their asylum claims considered. The INA Regulations also change the grounds on which a decision can be made to restrict admission to, or residence in the UK of an EEA national or their family member, or to deport an EEA national or their family. They replace the current deportation thresholds, laid down in the Immigration (European Economic Area) Regulations 2016 and in EU law, with the domestic law threshold currently applicable to non-EEA nationals, in relation to conduct occurring after the Regulations come into force. That includes a presumption in favour of deportation for any EEA national sentenced to 12 months’ imprisonment or longer, irrespective of the length or nature of their residence in the UK. This is another significant change to the treatment of EEA nationals.

There are a range of obvious possible impacts of the policy shift effected by the SI and even the Explanatory Note (Explanatory Notes are not typically ‘good practice’ examples of clarity) points out that, by deleting the Dublin III Regulation, the SI may have an impact on net asylum transfers to the United Kingdom. Brexit requires legal change but it is odd that the INA Regulations were laid on 11 February 2019, several weeks after the Immigration and Social Security Bill had been introduced in the Commons, and the day before its first day of debate in Committee. In fact, the changes to the deportation threshold for EEA nationals are described in the Explanatory Note as ‘pending the passage and implementation of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill’. It is difficult to think of a reason—aside from political expediency—why such changes, carrying obvious policy implications, could not have been given effect through the Bill, which has been the site of significant deliberation and engagement. This was highlighted by Afzal Khan MP when the Regulations were debated in the House of Commons. He argued he would vote against the changes, despite supporting some of the measures, because ‘the Government should be doing those things in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which is currently before Parliament.’ Meanwhile, the Immigration Bill is itself almost wholly constituted of delegated powers.

Another example of departure from the expected course of action can be seen in how the Government has used the Social Security Coordination Regulations to delete the equal treatment provision in Article 4 of the EU Social Security Coordination Regulation (Regulation 883/2004/EC). The equal treatment provision provides that if an EU citizen has a social security entitlement (because for example they have paid into social security schemes in the past) they will be treated in the same way as a British national when accessing that scheme. This removal appears to sit uncomfortably with the Government’s policy paper Citizens’ Rights – EU citizens in the UK and UK nationals in the EU, which stated that EU nationals lawfully resident in the UK on ‘exit day’ ‘will be able to continue to access in country benefits and services on broadly the same terms as now.’ The Explanatory Note accompanying the draft regulations does not telegraph the removal of the equal treatment provision and, as far as we have seen, the Government has not explained its rationale for the change. The European Scrutiny Committee, in its 53^rd report released on 5 February 2019, has criticised this removal, stating:  ‘[i]t is unclear to us how this commitment to the ‘equal treatment’ principle would be affected by the draft Statutory Instrument to prepare Regulation 883/2004 for the UK Statute Book in a ‘no deal’ scenario, which would explicitly remove Article 4.’ This is all the more strange when the Explanatory Notes to the Immigration and Social Security Bill appear to assume that the equal treatment provision would be retained: ‘The SSC Regulations provide for equal treatment of those in scope.’ Not only is this change not being given effect in primary legislation, it is a change being made via SI that appears to contradict the Explanatory Note to the very Bill in which it should arguably be included.

What law ought to be made by SI and what law ought to be made by primary legislation is a complex question. The traditional distinction is that technical change is done via SI with matters of significant policy being done in primary legislation (see e.g. Cabinet Office, Guide to Making Legislation (2017); Committee on Ministers’ Powers, Report (Cmd 4060, 1932)). This is, in many ways, a porous distinction and one which could only ever be described as loosely related to current practice. It is clear, however, that the approach to EUWA powers is, at least in multiple important places, inconsistent with the promised course of action. The result is that important policy changes are more likely to go undeliberated at a time when the risk of that happening is already very high.

Alexandra Sinclair is a Research Fellow at the Public Law Project. She is leading on the SIFT Project, which, in partnership with the Hansard Society, is tracking qualitative trends in Brexit SIs.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.

(Suggested citation: A. Sinclair and J. Tomlinson, ‘Brexit, Primary Legislation, and Statutory Instruments: Everything in Its Right Place?’, U.K. Const. L. Blog (25th Mar. 2019) (available at https://ukconstitutionallaw.org/))