In the rush to prepare for Brexit, parliamentary scrutiny will suffer

Originally published in The Times Red Box on 18 February 2019 and reproduced with permission

There has been much speculation over the past few weeks that the government is running out of time to ensure that all the statutory instruments (SIs) it says it needs to prepare the statute book for exit day can come into force when required.

SIs are the most common type of delegated legislation, and are used to add detail, update or sometimes even amend primary legislation (Acts of Parliament) without Parliament having to pass a new Act.

As of this morning, the government has laid 442 Brexit SIs before Parliament, and is now 74 per cent of the way towards its estimate of approximately 600 Brexit SIs. However, with six weeks to go, the biggest challenge facing the government in delivering its Brexit SI programme in time for exit day is the sheer number of debates it needs to schedule.

The vast majority of SIs laid before Parliament will be subject to one of two types of scrutiny procedure. SIs that are subject to the negative scrutiny procedure do not require a debate or vote in both Houses before they can become law. Negative SIs are subject to a 40-calendar-day scrutiny period during which either House can, in theory, object to them. However, negative SIs can and routinely do come into force before their 40-day scrutiny period expires. As a result, as long as these SIs can be 'made' (signed off) on or before exit day, the government can get them on to the statute book in time.

In contrast, SIs that are subject to the affirmative scrutiny procedure must be debated and formally approved by both Houses before they can become law. For affirmative SIs, in the House of Commons, delegated legislation committees (DLCs) of usually 17 MPs normally debate an SI before the approval vote is held in the chamber on a subsequent day. SIs can also be debated in the chamber, with the approval vote taking place immediately after the debate. The House of Lords must also debate affirmative SIs.

In normal parliamentary sessions, negative SIs constitute about 75 per cent of all SIs laid before Parliament. But, in contrast to this pattern, the majority — 55 per cent — of Brexit SIs laid so far are subject to the affirmative procedure.

As of this morning, that equates to 245 of the 442 Brexit SIs being affirmative instruments. But only just over half of these (52 per cent) have been debated or scheduled for debate in the House of Commons so far. This leaves a backlog of 118 debates of up to 90 minutes each that have yet to be organised.

The cancellation of the February House of Commons recess, due to start last Friday, provided the government with an extra few days to schedule debates on affirmative SIs and make a serious dent in the backlog. However, even given that the vast majority of the main business scheduled in the Commons this week is for debating SIs, only 17 Brexit affirmative instruments will be debated in the next four days. That’s just five more debates than last week, and four more than the week before that.

This means, from next week, an average of 24 Commons debates on affirmative Brexit SIs need to be held each week through to exit day on 29 March. Furthermore, if a majority of the up to 158 Brexit SIs that have not yet been laid before Parliament are also subject to the affirmative procedure, the number of debates needed will rise proportionately. The government could be required to schedule an average of 39 affirmative debates each week.

To help, the government could group related SIs in a particular policy area for consideration together, thus reducing the number of DLCs that need to be set up. And ultimately, if the government is running out of time, it can initiate the urgent case procedure set out in the EU (Withdrawal) Act. Under this procedure, ministers can make SIs that come into immediate effect having been made by the minister. 'Made affirmatives' then require both Houses to approve them within 28 days to remain in force.

The government can, therefore, get its Brexit SIs into force by 29 March, but probably only at the expense of what limited scrutiny already takes place for SIs. It is hard not to view this week then as a wasted opportunity.