When Bills containing broad delegated law-making powers are making their way through Parliament, concerns are often expressed about the constitutional propriety of providing such powers. Typically, it is the lesser forms of participation and scrutiny afforded to delegated legislation that animate such anxieties. There are many examples of this in recent years from across a range of policy areas. For instance, the sweeping powers in the Courts and Tribunals (Online Procedure) Bill provoked a strong reaction from the House of Lords Constitution Committee. However, the obvious and major case study of wide delegated powers in recent history is the European Union (Withdrawal) Act 2018. From the powers granted to the executive in this Act has emerged a tidal wave of delegated legislation—currently totalling around 620 statutory instruments (SIs)—with the general purpose of facilitating the UK’s orderly withdrawal from the EU. The principled objections often made to broad delegated powers are important, but it is also important to examine whether broad powers, once granted by Parliament, are producing problematic results. While much delegated law-making under the 2018 Act has been done lawfully and to a good standard, we have also observed some problematic results. In this post, we explore some of those patterns.
Many Brexit statutory instruments laid have attempted to weaken standards rather than straightforwardly facilitate the UK’s exit from the EU. Multiple examples have been detected by Parliamentary Committees during the sifting process or by civil society organisations:
- The Transmissible Spongiform Encephalopathies and Animal By-Products (Amendment etc.) (EU Exit) Regulations 2018 removed a statutory duty to ensure staff had appropriate education and training in relation to mad cow disease checks. The duty was only reinstated after the Secondary Legislation Scrutiny Committee criticised its removal.
- The Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019 removed a provision which contained a blanket ban on hormone disrupting chemicals in pesticides. After ChemTrust wrote to the Department for Environment, Food, and Rural Affairs, the Department reinstated the prohibition on endocrine disrupting chemicals.
- The Import of and Trade in Animals and Animal Products (Amendment etc.) (EU Exit) Regulations 2019 deleted the requirement to retest horses entering the UK whose test results came back as inconclusive for disease. After environmental groups lobbied the Department for Environment, Food, and Rural Affairs, this obligation was reinstated in a subsequent instrument.
Government has also used statutory instruments to make substantive changes to public policy, rather than just correct technical deficiencies arising due to Brexit. For instance, key laws affecting whether asylum seekers’ claims should be considered in the UK (rather than another EU state) have been effectively deleted. The rights of EU, EEA, Swiss, and Turkish nationals to be self-employed and to bring discrimination claims in the UK have been reduced. EU nationals already living in the UK have seen their rights change through the removal of their right to equal treatment when accessing social security schemes and by the authorising of their immigration status to be systematically verified. Delegated legislation has also been used to end UK membership of many programmes, such as the Rights, Equality and Citizenship Programme which funds 17 projects in the UK.
Statutory instruments have further been used to delete all sorts of existing administrative functions and processes without replacing them with UK equivalents. They have removed access to online dispute resolution for UK consumers, removed the requirement to make provisional payments where there is a dispute between countries as to pension or social security entitlements, removed the requirement to monitor the consumption of food additives, and removed the obligation to notify bodies of air quality or pollutant emissions or to notify EU states of defective UK products.
The SIs made over the last eighteen months have also contained a high number of errors. The Secondary Legislation Scrutiny Committee’s 60th Report states that the number of corrections that have been needed to statutory instruments and explanatory notes has increased in the last parliamentary session. It noted that the Department for Environment, Food, and Rural Affairs was responsible for many of the errors. For example, the Department described the removal of the prohibition on hormone disrupting chemicals described above as an erroneous omission. Other errors have attracted wider notoriety, e.g. the European University Institute Regulations 2019 were withdrawn after the Government wrongly thought that membership of the European University Institute was contingent on EU membership. The Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EU Exit) Regulations 2019 were passed to rectify a mistake made in an earlier SI which prevented some Scottish claimants from being able to file for child maintenance in Scotland.
Inevitably, there have also been some legality issues. The Cross-border Trade (Public Notices) (EU Exit) Regulations 2019, laid by the Government in October, sought to give Treasury officials a power to make, via public notice, changes to VAT or customs and excise legislation or to disapply any enactment, in connection with EU withdrawal. The regulations were withdrawn following pre-action protocol correspondence.
Procedure under pressure
The volume and pace of delegated legislation has also had problematic effects on the delegated law-making process. For instance, the Government has routinely not been laying impact assessments with the statutory instruments. The Government gave no financial analysis of the impacts of transferring the regulation of the UK’s chemicals industry, which makes up around 7% of UK GDP, from the European Chemicals Agency back to the UK. The Government removed the rights of EU, EEA, Swiss and Turkish nationals to be self-employed, own, and manage companies or provide services in the UK on the same basis as UK nationals and undertook no impact assessment of this change. The Government did not lay impact assessments for regulations altering how pesticides, food safety, and genetic modification are regulated in the United Kingdom. As would be expected, this makes assessing the impact of changes more difficult for both Parliament and the public. Parliamentary Committees have repeatedly criticised the Government for not laying impact assessments to explain the effects of the changes it is making.
The Government has also repeatedly used the urgent case procedure (which gives statutory instruments legal effect immediately and before they have been debated) to lay statutory instruments prior to the 31 October Exit Day. In a no deal scenario, this could have meant that significant instruments covering a range of policy areas would have been in force before having been debated. It was unclear why the instruments concerned could not have been made sooner.
The Withdrawal Agreement Bill
The revised European Union (Withdrawal Agreement) Bill (WAB) is now back in Parliament and similarly sweeping powers will almost certainly be granted to the executive again. The WAB does nothing to curb risks of problematic outcomes, such as those we have identified above, from arising. In fact, the position is in some ways worse than under the 2018 Act. The new Bill has 19 delegated powers, far more than the 2018 Act. Importantly, under the WAB there will be no extra sifting procedure of the kind established in the 2018 Act, which was able to act as a further check on the Brexit statutory instruments laid using the negative procedure. At the same time, the new Bill keeps the urgent case procedure power and extends it so that it now does not sunset until two years after the end of the transition period. There are valid principled concerns around the broad powers in the new Bill but we should also be concerned about the lower-quality outcomes that may result from those concerns not being heeded.
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 Senior Lecturer in Public Law at the University of York and Research Director of the Public Law Project.
(Suggested citation: A. Sinclair and J. Tomlinson, ‘Brexit Delegated Legislation: Problematic Results’, U.K. Const. L. Blog (9th Jan. 2020) (available at https://ukconstitutionallaw.org/))