If you care about parliamentary scrutiny you need to look at the coming slew of Brexit statutory instruments

Whether the UK exits the transition period on 31st December with or without an EU free trade agreement, the period between now and Christmas will see parliament face another slew of Brexit-related delegated legislation.

To prepare for the end of transition, the government expects to lay another 250-300 statutory instruments (SIs), through which ministers make law without parliament having to pass a new act. Many will be politically sensitive. Given that this new surge of Brexit SIs will come on top of the large and controversial body of coronavirus-related regulations, an under-the-radar question for the autumn is whether SIs’ heightened public and political profile will finally push more parliamentarians to commit to reform the way this legislation is scrutinised.

A growing number of MPs, particularly on the government backbenches, are expressing frustration about “government by diktat” during the pandemic. While most SIs are already law when they are laid before parliament for scrutiny (that is, they are “made” SIs, not drafts), the coronavirus SIs are highlighting particular problems with the process.

Firstly, there can be a mismatch between the political salience and everyday impact of regulations and the scrutiny procedure to which they are subject. For example, the quarantine regulations are “negative” SIs, so they do not require parliamentary approval and are only exceptionally subject to debate, and only if the government provides time. The recent SI which extends permissible pre-trial custody by 56 days (with the aim of addressing the backlog in the courts) is also a negative instrument, again making a significant incursion on an individual’s liberty without a requirement for advance parliamentary debate and approval.

An unusually high share of coronavirus SIs are subject to the “made affirmative” scrutiny procedure —so are law before being scrutinised but at least require retrospective parliamentary approval. However, concerns remain because most such coronavirus SIs—like the various “lockdown” regulations—are being made using the urgent power in the Public Health (Control of Disease) Act 1984. This is subject to little constraint. Even if a measure has been trailed in the media for days, a minister only needs to declare the matter urgent to be able to use the power to make an SI on a Friday and bring it into effect on Saturday, all without prior parliamentary scrutiny.

The government’s approach to the pandemic powerfully highlights the extent to which the broad scope of powers delegated to ministers—including in acts passed decades ago—affords the executive extensive legislative power with minimal parliamentary control. To date, powers in 99 Acts of Parliament—many dating to last century and some to the century before that—have been used to make coronavirus-related SIs. Only 14 SIs have been made using powers in the emergency Coronavirus Act 2020, rushed through parliament in the early days of the pandemic.

Further issues highlighted by the number and importance of the coronavirus SIs made this summer include the impact of the parliamentary recess on lengthening the period in which law can be in force without scrutiny; and the handling of rapidly-changing SIs. The succession of lockdown regulations has seen MPs and peers debating and approving SIs even after they have been amended by a later instrument, or in some cases not having a chance to debate a made SI before it is revoked.

These issues come on top of other longstanding problems with the SI scrutiny process at Westminster, particularly the House of Commons. The government’s control of parliamentary time means it decides if and when a “negative” SI is debated. “Affirmative” SIs require a debate of up to 90 minutes, usually in a Delegated Legislation Committee; but DLCs are temporary committees with members in effect chosen by party whips, and they have no secretariat support to provide MPs with advice on often technical issues about which they may know little. DLC debates rarely last more than half an hour. Because parliament cannot amend an SI, MPs face a “take it or leave it” proposition which acts as a disincentive to scrutiny.

The forthcoming Brexit SIs are expected to include an unusually high share of affirmative instruments (ministers estimate around 55 per cent, against 20-25 per cent among “regular” SIs). This means up to 165 Commons debates may be needed, either in DLCs or in the chamber, although multiple related SIs may be considered together. Made affirmative SIs, like coronavirus lockdown regulations, have a statutory deadline and several dozen are likely to need to be debated and approved in time.

The need for debates on this volume of affirmative SIs could present the government with some tricky scheduling challenges before year-end. It will also provide ample opportunity for MPs to express their dissatisfaction with the current scrutiny system.

The Hansard Society and a range of parliamentary committees have long recommended reforms to address the unacceptably broad delegation of powers to ministers in bills and the inadequate scrutiny process that attaches to the resulting SIs. There is no lack of ideas to improve the system; what has been lacking is political will. After Brexit and coronavirus, if MPs will not finally tackle the problems now, when will they?

 

Ruth Fox is Director of the Hansard Society, where Brigid Fowler is Senior Researcher