Having our cake and eating it: Parliamentary sovereignty in light of Brexit and the Covid-19 pandemic

29 October 2021

Back in December 2020, Boris Johnson was keen to impress upon us that the UK-EU Trade and Cooperation Agreement would in practice be a “cakeist treaty,” meaning that it would allow the UK to have its cake and eat it.
 

Much has happened since the PM expressed this aspiration.  In the space of 9 months, the UK has experienced its third wave in the Covid-19 pandemic, the falling away of social restrictions and a slowly rising Covid-19 death rate. Now that the UK is currently without most Covid-19 restrictions we can begin to consider the effects of the end of the Brexit transition period at 11pm on 31 December 2020, and whether we really are having our cake and eating it so far.

One of the key themes of the Brexit campaign was for the UK to retain Parliamentary sovereignty, or “Take Back Control.” This blog focuses on that aspect of Brexit and revisits previous discussions around delegated legislation and Parliamentary sovereignty to assess the effect of the past 9 months on our Parliament.

While Brexit was already driving a sharp increase in reliance on delegated legislation, since early 2020, the pandemic has compounded this trend. Together these developments have had a phenomenal effect on the political landscape of the UK (and arguably accelerated a constitutional shift).

Statutory Instruments (‘SIs’)

What are SI’s and how do the numbers compare to Acts of Parliament?

Parliament asserts its sovereignty through its legislative function – by creating Acts of Parliament which govern the day to day running of the state. Crucial to this function is scrutiny of such legislation, that is, the process by which MPs examine proposed Bills and make amendments.

Statutory Instruments are pieces of delegated legislation made by Ministers using the powers conferred on them by Acts of Parliament. The number of SIs per year has been steadily increasing, peaking in 2014 with 3,481 UK SIs. In 2020, 1,617 UK SIs were passed in total. In contrast, the average number of Acts of Parliament between 2006 and 2018 is 33. It is therefore clear that delegated legislation is now the ‘standard’ form of legislative activity in the UK.   

Should the rise of SIs be cause for concern?

The issue with SIs is that Parliament does not have the opportunity to scrutinise these pieces of legislation to anything like the same degree as Acts of Parliament. There is some limited scrutiny in the affirmative and negative procedures by various Committees of both Houses. The sheer volume of SIs means, however, that Parliament simply does not have the capacity to scrutinise these instruments effectively, resulting in the executive often having a free hand. This is not much of a concern so long as SIs are used for their traditionally limited purpose of filling in the details of legislative frameworks, the fundamentals of which are set out in Acts of Parliament. It becomes a danger, however, of government seeks to avoid parliamentary oversight by effecting policy through secondary legislation. The Hansard Society has previously criticised this, stating that delegated legislation is “increasingly drift[ing] into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail.” When the government has a strong majority in the House of Commons, it is very difficult for Parliament to address such an approach.  

Further, a substantial amount of the concern around SIs focuses on ‘Henry VIII’ powers. These are a more potent form of SI which gives a Minister power to amend primary legislation, such as Acts of Parliament, without much involvement from Parliament.

 

Brexit

Why has Brexit generated so many SIs?

Section 2(2) of the European Communities Act 1972 (“ECA”) gave Ministers the power to create secondary legislation (through SIs) in order to give effect to EU directives and some regulations in domestic law while the UK was an EU Member State. Brexit led to the ECA being repealed, and from Exit Day on 31 December 2020 a vast body of EU law was incorporated into domestic law by virtue of the EU (Withdrawal) Act 2018 (“EUWA”). EUWA effectively took a snapshot of EU law as at this date, and transposed it into UK domestic law, complete with obsolete references to European bodies such as the European Court of Justice and European Commission that no longer play their previous formal roles in the UK now we have ceased to be a Member State. As a result, these parts of the legislation are deficient.

By virtue of section 8 of the EUWA, Ministers are given executive powers to rectify such deficiencies through SIs, so as to give proper effect to this transposed EU law in the UK as well as any other legislation implementing or arising out of Brexit. Because there are so many deficiencies to resolve, the result has been a deluge of Brexit-related SIs. Importantly, section 8(5) contains a Henry VIII power. The provision allows Ministers to make by regulations “any provision that could be made by an Act of Parliament.” The Government did include a sunset clause for section 8 to end two years after Exit Day (31 January 2020) but this was extended to two years after IP Completion Day, defined as 11pm on 31 December 2020, in the EUWA 2020.

What role does Parliament play in the process?

According to SI trackers, over 1,200 SIs have now been laid before Parliament which implement Brexit. Of the 341 laid for sifting by various Committees of the Houses, 76 have been recommended for upgrade from the negative to affirmative procedure, by either the European Statutory Instrument Committee (“ESIC”) or the Secondary Legislation Select Committee. The ESIC is one area of positive reform around scrutiny of delegated legislation put forward under the EUWA, but has been called “toothless” by the Hansard Society. Part of the problem is that an SI only needs to be laid for sifting by the ESIC if it has been proposed under the EUWA. Often, the Government will propose the instrument under another piece of legislation, with the effect of circumventing the ESIC. Irrespective, not one of the SIs laid so far have been rejected and the existence of the ESIC does little to address the serious implications for Parliamentary sovereignty

It is impossible for Parliament to scrutinise hundreds of Brexit-related SIs properly. Often these SIs run to hundreds of pages, and the ESIC has extremely limited time to properly review them. For example, the SIFT Project’s paper on this issue highlighted examples such as the Product Safety and Metrology (Amendment) (EU Exit) Regulations 2019 which run to 619 pages and were debated in the Commons and the Lords for 52 and 51 minutes respectively. There is a severe limit on how much can be done in such circumstances, particularly when these bodies have no power to amend the legislation or suggest improvements.

 

Covid-19 pandemic

Why has Covid-19 generated so many SIs?

The past 19 months has been characterised by a wave of sweeping exercises of Government power with the purpose of restricting our individual liberties in order to contain Covid-19.

This extraordinary use of executive power has been possible through s 45R of the Public Health (Control of Disease) Act 1984 (“1984 Act”), when it is “necessary by reason of urgency”, and (as with Brexit) many of the changes have been legislated for through SIs.

The Hansard Society have complied a Coronavirus Statutory Instrument Dashboard to monitor delegated legislation implementing the response to Covid-19. At the time of writing, 508 pandemic-related SIs have been laid before Parliament. 366 of these were ‘made negative’, and 108 ‘made affirmative’. 91 were made using the urgent power conferred by the 1984 Act, and 201 breached the 21 day rule (that the SI must be laid in Parliament for 21 days before it is made law). This is 54.9% of the total. As of 3 October 2021, 56 Covid-19 SIs have come into effect before being laid in Parliament at all.

Many of these SIs are intended to amend older SIs, often in very quick succession, which reflects the rapid changes in scientific understanding and policy at the beginning of the pandemic. Often, subsequent SIs served to prolong the measures introduced by previous instruments, such as the Protection from Eviction Regulations 2021. Similarly, the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 were repeatedly amended to reflect the changing red/green list countries and quarantine restrictions. These regulations now number 20 for England alone, including amendments. Similarly, The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 have been amended and passed under varying titles to correct drafting errors and to change restrictions in different areas according to the level of the virus at the time.

This further stream of new SIs has only increased the difficulty of Parliament providing effective scrutiny of delegated legislation. It is clear that MPs themselves have felt frustrated at their inability to exert proper oversight around the deluge of delegated legislation. In September 2020 the Brady amendment sought to ensure the involvement of Parliament in secondary legislation “as far as reasonably practicable” in the renewal of the Coronavirus Act. Despite its inclusion, it has had little weight with regards to scrutiny of SIs.

Where are we heading?

Much will continue to depend on the progress of the pandemic, and whether further emergency measures will be required. The current relaxation of restrictions has, however, given the Government space to once again focus on its legislative agenda.

Many of the trends towards heavy use of SIs discussed above pervade currently proposed Acts of Parliament. For example, the Health and Care Bill 2021 which is currently in the Committee stage in the Commons. The Hansard Society has prepared a Briefing Paper highlighting the areas of concern in this bill.  Its objectives are wide: it intends to integrate health and social care, merge NHS England and NHS Improvement, and furnish the Health Secretary with further powers relating to NHS England, as well as changes to law ranging from competition and procurement, collection and sharing of healthcare data and public health matters around food and drink. If passed, it would amend several Acts of Parliament, and it contains 138 delegated powers for Ministers to make SIs, of which 7 are Henry VIII powers. There is a theme running through the clauses of concern: a lack of detail, use of skeleton clauses, Henry VII powers reducing the prospect of effective oversight by Parliament in important policy areas, as well as inadequate checks on Ministerial powers.  

A further example is the Nationality and Borders Bill, also in the Committee stage of the Commons. The main issue with this bill as drafted is that it contains six placeholder clauses. The Government said that it intended to replace these with substantive provisions ahead of the Committee stage, however at the date of writing none have been included. The clauses themselves would create delegated powers around significant issues including the right to work, removal of relevant prisoners from the UK, and the applications process for entry from certain countries. That the Bill is essentially unfinished as lawmakers debate it is contrary to legislative guidance, and affects Parliament’s ability to properly scrutinise it. This is because substantive law might be added at a late stage where there are fewer opportunities for revision.

 

Conclusion

Since IP Completion Day, the theme of legislating for Brexit through SIs has continued, and in fact has accelerated with the Covid-19 pandemic. But as the need for emergency measures wanes, Parliament does not seem to have ‘taken back control’ of its legislative function, particularly where it concerns Brexit and delegated legislation. The ESIC and other Committees undoubtedly exercise some scrutiny, but they are limited in their power and separate from the Parliamentary body. If Government policy continues increasingly to be implemented through SIs, Parliament needs to be equipped with the time and resource to scrutinise and amend them in order properly to hold the executive to account. As SIs clearly are now the ‘standard’ method of legislating in the UK, reform is needed of the scrutiny process in recognition of this shift, and some balance must be regained between our executive and legislative bodies.

Further Information

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

Should you require advice about the issues covered in this blog, please contact a member of our Public Law team.

 

About the Author

Phoebe joined Kingsley Napley in 2020. She is currently a trainee solicitor in the Public Law team.

Nick Wrightson is a Partner in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries and complex inquests. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.

 

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