Statutory Instruments – where do I begin?

The European Union (withdrawal) Bill, commonly referred to as the Repeal Bill, was presented to Parliament yesterday. You probably weren’t alone in asking what the terms delegated legislation, secondary legislation and statutory legislation mean and what this all has to do with Brexit. Don’t panic. We are here to help.

To understand the complexity of the Repeal Bill process, first you need to understand the structure of a piece of legislation, of which there are two parts: primary legislation and statutory instruments.

Primary legislation is the framework that sets out the overall principles, often without much detail. Like the cover of a book, it tells you briefly all you need to know about the legislation without telling you the whole story. 

Statutory Instruments, also known as delegated legislation and secondary legislation, is used to ‘fill out’ and amend primary legislation without having to pass a new Act of Parliament, by delegating powers to Ministers. Going back to our book analogy, statutory instruments would be story that makes up the pages between the cover.

If the measures contained within a Bill are highly technical or administrative in their nature, then this should be dealt with through a statutory instrument so that power is delegated to particular Ministers.  It also allows the Government to involve an external source of expertise to shape the policy. This is a useful tool when you have to act quickly in a time of crisis, for instance amending legislation in response to a terrorist attack.

Brexit and Statutory Instruments

The European Union (withdrawal) Bill will repeal the European Communities Act 1972 and remove the applicability of EU law over UK law. It will then convert the existing body of EU law into UK law, and amend this body of law to ensure it functions sensibly.

Broadly speaking, there are two categories of EU law:

  1. Directly Applicable EU law through EU Regulations, EU Treaty Provisions and EU decisions. To convert this into UK law, the Repeal Bill can incorporate a ‘Continuation Clause’ which allows directly applicable EU laws to have a continuing effect in UK law.
  1. Transposed EU law through EU Directives. There are currently 7,900 powers in existence on the UK Statue book giving the UK powers to implement EU Directives via statutory instruments. The Repeal Bill will have to incorporate a ‘Saving Clause’ retaining these 7,900 statutory instruments.

There will be many aspects of EU law that will have to be amended to function sensibly in UK law. This where Statutory instruments will be an important tool to amend legislation so that references such as ‘EU law’ , ‘EU obligations’ and ‘EU institutions’ are removed from existing legislation. 

Unfortunately, things become more complex. Whilst statutory instruments are a very useful tool to examine, add and amend detail in legislation, there are many issues with them, the most significant being that the act of giving Ministers broad delegated powers to amend and repeal primary legislation undermines Parliamentary Sovereignty.  To strengthen the legislation process, Parliamentary scrutiny of these delegated powers will be crucial to ensure that powers are not being misused and there is sufficient oversight of the statutory instruments.

Statutory instruments can be either affirmative or negative:

  • Affirmative instruments require the active approval of both Houses of Parliament before they can come into effect, which strengthens the scrutiny process.
  • Negative instruments become law on a stated date unless a motion is passed in either House. If an MP or Peer wishes to reject a negative instrument they have 40 days to do so. However most negative statutory instruments are laid after being signed off by a Minister and before it can be rejected, which undermines the scrutiny process.

Currently, less than half of all statutory instruments are subject to any detailed Parliamentary scrutiny. Of those statutory instruments that are subject to scrutiny, most are signed off and come into effect before the scrutiny process begins. The Government have the resource to only scrutinise around 3,000 statutory instruments per year, and in the past 67 years only 0.01% of Statutory instruments have been rejected.

Parliament has introduced Henry VIII powers in the European Union (withdrawal) Bill, which is a form of a statutory instrument with a time limit. In the case of the Repeal process, Ministers have been given a two year time limit to their powers. This is controversial as Ministers have the power to repeal primary legislation through delegated legislation so that they can remove references to EU law or EU entities found in both primary and delegated legislation. Furthermore, many of the statutory instruments introduced in the Bill are negative, thus they will be signed off before either House can scrutinise the power and reject the instrument.

Maintaining effective oversight of the powers given to Ministers is a major challenge for Parliament and they are up against a ticking clock. Unless the scrutiny process of statutory instruments becomes more stringent and streamlined, Parliament and the Repeal Bill remain in a precarious position.

Last updated 14/07/2017