Kingsley Napley considers statutory instruments and Brexit

Many who voted for Brexit did so to ‘Take Back Control’ from the EU, but who will legislative control pass to after Exit Day and what are the possible consequences for our constitution and for all of us? In the coming months, our Public Law team will publish a series of short comment pieces that explore the functions of secondary legislation in the UK, how lawmakers are held to account and the implications of Brexit in this area. See our Public Law Blog and Brexit Blog for more.

In the UK, we tend to assume that legislation achieves “validation and legitimacy through consent by the legislature” (Paul Craig). Unlike an Act passed by the UK Parliament, however, secondary legislation (also known as delegated or subordinate legislation and statutory instruments) refers to legally binding rules that are not made by the elected legislature at all, but by a minister, official or administrative body. The power to make these rules will be conferred by an Act of Parliament, but its exercise will occur at one remove from the House of Commons or the Lords, somewhere in the byzantine machinery of the ‘administrative state’.

Looked at this way, secondary legislation may appear undemocratic. The reality is, however, that the modern state cannot do without it. Parliament has only so much time and society has grown too complex for MPs and peers to satisfy its demand for rules. Many areas of life are highly technical, so it makes sense for Parliament to fix the structure then let the specialists fill in the fine print. Some areas of life are dynamic so rules need to change more quickly than Parliamentary procedure allows. Much modern legislation is no-longer about governing the conduct of private persons. It is “usefully viewed as a set of internal government instructions” telling public bodies the policy they are expected to implement (Edward Rubin). For these and other reasons secondary legislation is now the norm in advanced societies. 

The rise of secondary legislation may be extremely practical and arguably inevitable, but the problem of “validation and legitimacy” is stubborn. We tend to be uncomfortable about faceless bureaucracies going unsupervised, so administrative bodies consult on proposed rules and Parliament increasingly oversees and scrutinises them to maintain legislative quality. After secondary legislation is made it may, importantly, be supervised by the courts. A claimant can apply for judicial review challenging its legal validity and, if it is unlawful, it can be quashed.

Secondary legislation has never been bigger news. As Imogen Sadler has recently written, on top of upwards of 3,000 statutory instruments being made annually in the ordinary course, 800 more are expected to be made to resolve gaps to the statute book caused by the UK’s withdrawal from the EU, at a rate of approximately 35 to 45 a week. Given the uncertain outcome of the Brexit negotiations and the sheer breadth and complexity of subject matter to be legislated for, this task is placing an enormous strain on an already overburdened Whitehall. Effective legislative drafting requires the selection and application of the most appropriate principles to resolve inevitable clashes between competing aims (Helen Xanthaki). This is a blend of art and science but many of those entrusted with the task may be trying it for the first time. The risks of delays, mistakes, impracticality, unworkability and even deliberate executive overreach cannot be overstated.

Secondary legislation is therefore likely to be a big issue in Brexit Britain. With that in mind, our Public Law team will publish a series of short comment pieces on secondary legislation and Brexit in the coming months. Aimed at the general public, these will begin by covering the basics of secondary legislation from why we have it to the powers of the court to review and set it aside. We will then turn to Brexit itself, including examining the basis on which Brexit secondary legislation will be made and examples of the problems posed for selected sectors.

We hope you will join us for this series, entitled ‘Playing by their own rules?’

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An edited version of this blog appeared in the The Law Society Gazette on 17 September 2018. To view the blog, please see page 15  here.

Further information

Lawyers from Kingsley Napley are regularly blogging about a range of legal issues, including Public Law matters and the impact of Brexit. See our Public Law Blog and Brexit Blog  for the latest commentary.

Should you have any questions about the issues covered in this blog, please contact Adam Chapman or a member of our Public Law team.