Dealing with deficiencies – is the Brexit secondary legislation process working?

Those of you who were following the debates around what started as the great repeal bill, and ended up being passed as the EU Withdrawal Act, will remember the debate about the use of powers to make sweeping changes to UK law without the need for primary legislation. A point that we and many others made at the time, was that these powers around ‘dealing with deficiencies‘ should only be used to make technical changes to ensure the law functions properly, and not to make substantive policy changes. This is something which the government repeatedly assured would be the case during the passage of the bill.

Thanks to the important work of the Public Law Project’s SIFT project, there are now questions about how carefully this commitment is being adhered to. Last week NCVO was a signatory to a letter organised by the Public Law Project, raising questions about how this process is working in practice.

The letter highlights that a number of statutory instruments (SIs) have removed requirements that penalties be ‘effective, proportionate and dissuasive’, with no additional information explaining why this is the case. According to the Public Law Project, there is no legal reason why this framework could not be adapted into UK law, and as such this is clearly a policy decision rather than the sort of tidying up that was originally envisaged.

What are statutory instruments?

Primary legislation often provides ministers with the power to make changes to the law without full parliamentary scrutiny. This is because if you had to take a bill through parliament every time you needed to make minor changes to the law, there simply wouldn’t be enough time. These powers are often used for things like updating fees, specifying dates, and filling in the details of broader policies, and when passed are known as secondary legislation.

The most common way of passing secondary legislation is through SIs, which go before parliament, sometimes requiring committees of MPs and peers to vote in favour (affirmative resolution), and sometimes just requiring that nobody raises any objections within a certain time period (negative resolution).

There is already controversy over the lack of scrutiny that SIs receive, so some experts in this area, such as the Hansard Society, argued that given the large amount of secondary legislation that would be required by Brexit, the way in which SIs are scrutinised should be significantly improved. This led to the creation of the European statutory instruments committee (or ‘sifting committee’) which examines the SIs being passed and recommends those that they think require more scrutiny for affirmative resolution – though these recommendations are not binding and do nothing to reform the procedures used.

Concerns over scrutiny

There have always been concerns that the weight of legislative changes required by Brexit would make it very difficult to pass all of the secondary legislation required in time, let alone make sure it is properly scrutinised. In practice, this has proved to be the case, as Ruth Fox from the Hansard Society has recently set out. There have also been questions about how effective non-legislative scrutiny has been, with SIs being combined (one has come in at around 600 pages) and a lack of impact assessments being provided.

Why does this matter?

Given the need for a large number of corrections to be made to UK law, it was inevitable that statutory instruments would need to be used extensively, and beyond the parameters which they would normally be used. So it’s even more important that the government stick to the principle of only making technical changes through this route, and not policy decisions. It may be that there is a case to remove the requirement that penalties should be effective, proportionate and dissuasive, but this is a case that should be subject to scrutiny from parliament and other interested parties.

For charities, this means they will have to be vigilant about how these SIs change the law. Many organisations have fought hard to ensure that UK and EU law provides for high levels of standards and rights in a range of areas. It’s clear that we urgently need to pass a range of secondary legislation before we leave the EU to ensure the law functions properly, but that process cannot be allowed to roll back hard won rights without scrutiny.

And this is also why it is important that the government clarifies examples where they do not appear to have stuck to this approach.

What can you do?

The SIFT project is doing excellent work, but they rely on those with specific policy expertise to point out where things are going wrong. If you’re a charity having to deal with Brexit statutory instruments, you can help them by getting involved in the project and sharing your experiences.