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 third post in our Public Law team’s blog series Fred Allen outlines the processes by which secondary legislation is enacted and examines how these might affect judicial scrutiny. Follow our Public Law Blog for more.
How does secondary legislation come into force?
As is explained in greater depth here, secondary legislation is passed pursuant to an Act of Parliament, often referred to as its parent Act. The parent Act will usually prescribe a process for the enacting of the relevant statutory instruments, which normally involves a form of “light touch” Parliamentary scrutiny. The most common enactment processes are the negative and affirmative resolution procedures. Secondary legislation passed pursuant to the negative resolution procedure enters into law on the date stated on it but will be annulled if a motion calling for its annulment (known as a “prayer”) is passed. It is rare for there to be any Parliamentary debate on secondary legislation subject to this procedure and rarer still for a prayer to be moved and passed. An affirmative resolution procedure requires active Parliamentary approval, usually by both Houses. Again, rejection of the legislation is very unusual. As is explained in more detail here, scrutiny is usually carried out by various Parliamentary Committees rather than through debate in the Houses themselves. Some of these committees examine the legal and political significance of the secondary legislation; others examine its lawfulness (i.e. whether there is sufficient legal basis for the secondary legislation in the parent Act).
Whereas the parent Act usually prescribes the enactment process, the European Union (Withdrawal) Act 2018 is exceptional in that it does not always specify which level of Parliamentary scrutiny should be applied to regulations passed pursuant to it, leaving it to Ministers to decide whether the negative or affirmative resolution procedure should be used. During its passage through Parliament the Bill was amended to create a mechanism to allow for Committees in either House to make a recommendation that a regulation, which a Minister proposes to pass using the negative resolution procedure, be “upgraded” so that the affirmative resolution procedure is used instead. The Secondary Legislation Scrutiny Committee has indicated that when considering whether to make such a recommendation it will ask “is the subject matter of this instrument and the scope of any policy change effected by it of such significance that the House would expect to debate it?”. “Upgrade” recommendations by committees will be advisory only and it is for the Minister to decide whether to accept them. Government comments during the passage of the Bill suggested that such recommendations would usually be accepted and reasons would be publicised if they were not. The timing of when such reasons should be given has been the subject of some disagreement between the Government and the House of Commons Procedure Committee already, potentially setting the scene for more difficult confrontations between Parliament and the executive in the future.
How will I know if secondary legislation is in the offing?
A list of draft, made and proposed statutory instruments can be found here. The issue of a statutory instrument is noted on the day following its publication in the Stationery Office Daily list and those laid before the House of Commons are also recorded. The Commons list shows statutory instruments currently before the House that are subject to the affirmative and negative resolution procedures along with the number of ‘praying’ days remaining (days within which a motion to annul an instrument passed under the negative resolution procedure can be brought). A dedicated page for secondary legislation brought forward under the European Union (Withdrawal) Act 2018 can be found here.
Political challenges to statutory instruments
Once a statutory instrument comes before Parliament, it is very exceptional for any political challenge against it to succeed. As is explained here, the House of Commons has not rejected a statutory instrument subject to the negative or affirmative resolution procedures since the politically volatile late 1970’s, when a fragile minority government was in power. Political work on secondary legislation is far more likely to be carried out by Parliamentary Committees and the Secondary Legislation Scrutiny Committee has reaffirmed that it welcomes submissions from external stakeholders offering constructive criticism. The Committee suggests that anyone who wishes to comment on a proposed negative instrument makes a submission as soon as possible and preferably within five working days of the instrument being laid.
Legal challenges to statutory instruments and Parliamentary procedure
Secondary legislation is subject to the supervisory jurisdiction of the courts, which have the power to strike it down if it is unlawful. In affirming their jurisdiction and their approach to the scrutiny of statutory instruments, the courts have made reference to the lower level of scrutiny Parliament is taken to have given to such legislation when compared with primary legislation, with Lord Donaldson stating in McKiernon v Secretary of State for Social Security (1989) 2 Admin LR 133 that:
Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.”
This passage was cited with approval by the Supreme Court in Regina (Public Law Project) v Lord Chancellor (Office of the Children's Commissioner intervening)  A.C. 1531, a challenge to the introduction of a residence test for civil legal aid through secondary legislation. In that case, the Government sought to place some significance on the use of the affirmative resolution procedure – suggesting the courts should apply light touch scrutiny to matters that had been actively approved by Parliament. Laws LJ in the Court of Appeal had also expressed doubts about the Government’s argument. He stated that he do not think the use of the affirmative resolution procedure in Parliament “could itself drive the case very far” and indicated that the procedure used would not be an overriding factor determining the intensity of judicial review.
It remains to be seen whether the constitutional shift brought about by the European Union (Withdrawal) Act 2018 will affect the courts’ thinking on secondary legislation and the use of the affirmative and negative resolution procedures. The scope and volume of secondary legislation needing to be passed pursuant to such procedures is unprecedented. The mechanism for passing secondary legislation created by the European Union (Withdrawal) Act 2018 also leaves open the door to judicial review challenges of the decisions of Ministers on which of the procedures should apply in each case. This has the potential to put a real strain on the UK’s constitutional order: the judiciary could find themselves being asked more regularly to referee politically tense fights between Parliament and the executive on legislative processes.
The level of Parliamentary scrutiny applied to secondary legislation and the limited scope for political challenge has caused considerable anxiety to both politicians and the courts. The passing of European Union (Withdrawal) Act 2018 introduced a new process for the passing of secondary legislation made pursuant to that Act and a vast number of statutory instruments are being passed as part of the Brexit process. It remains to be seen how the courts’ role in ensuring adequate scrutiny of such legislation will evolve in response.