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Rip it up and start again: Brexit, secondary legislation, and the challenges and opportunities of a new order

The UK's departure from the EU presents the most challenging legislative project in history, requiring a huge volume of secondary legislation between now and exit day to ensure that our legal and regulatory arrangements remain effective.

The UK's departure from the EU presents the most challenging legislative project in history, requiring a huge volume of secondary legislation between now and exit day to ensure that our legal and regulatory arrangements remain effective.   That will have a substantial impact on other parliamentary business and effective legislative scrutiny, and has the potential to lead to a number of legal challenges.

The Department for Exiting the European Union (DExEU) has recently announced that it expects to lay anywhere between around 400 and 700 statutory instruments (SIs) between now and exit day in order to achieve a functioning statute book. SIs are made by Ministers rather than by Parliament, and provide a vital mechanism for ensuring effective public administration by letting Ministers - in reality, government departments and civil servants - fill out the legal and regulatory fine print.  They are subject to much less scrutiny than Acts of Parliament and – unlike Acts – can be challenged in the courts through judicial review.

DExEU estimates that the Government will lay 150-200 SIs in November, a further 100-150 in each of December and January, and 10-50 in each of February and March.  The majority will be laid by the Department for Environment, Food and Rural Affairs, HMT, HMRC, BEIS and the Department for Transport.  To put that into perspective, a total of 1,242 SIs were made in all of 2016, with roughly 2,500-3,000 being made in a typical year.  DExEU provided its estimate in late October, and these numbers may well go up or down substantially depending on parliamentary support (or the lack of it) for the draft withdrawal agreement struck between the Government and EU negotiators in recent days.

The Government will then need to enact more legislation to give effect to any final deal that is struck with the EU.  Given the depth of the relationship in areas such as medicines, travel and financial services, and given the large number of Acts and secondary legislation affected, that is likely to dwarf the exit day project.

The inevitable impact will be that departmental and parliamentary time for other business will be severely limited, with several Government departments having little or no capacity to deal with anything other than urgent, Brexit-related business.  Regulators and other public bodies have struggled to get ministerial attention and parliamentary windows for essential legislation, and there is a general acceptance – albeit a grudging one - that current regulatory frameworks which are not Brexit-related will have to wait to be updated. 

The heavy burden on the departments enacting the legislation gives rise to a higher risk of suboptimal legislation.  Although many of the SIs due to be enacted will be formally approved by Parliament, the volume of legislation Parliament will need to consider will severely curtail the opportunity for robust scrutiny.  Many have voiced concern that the Government will rely disproportionately on so-called Henry VIII clauses, which allow Ministers to amend Acts of Parliament, seen by many to be a questionable measure given that Parliament's sovereign power over the Government is at the core of our constitutional arrangements.  There is a realistic prospect that some of the secondary legislation which will shortly be enacted will be challenged in the High Court on procedural or substantive grounds.

Aside from crossing their fingers and hoping for the best, there are three things organisations can do if they are potentially affected by this legislation:

  1. Pay attention.  No one should assume that the Government has considered all of the angles in granular detail.  Although Ministerial departments will do their best, they will not necessarily have a full perspective of the relevant issues.  It will be important to consider the scope and detail of any proposed arrangements as early as possible.
  2. Engage.  The Government needs help, and will be heavily reliant on those with specialist expertise providing input and insight.  If those affected by Brexit-related changes keep their own counsel at this stage, they are likely to find it difficult to undo any changes at a later stage.  Where Brexit provides an opportunity to do things differently, it will be important to ensure that the Government knows. 
  3. Be prepared.  While the courts are likely to afford the Government a margin of appreciation in how it goes about its Brexit business, they will not stand idle if the Government acts unlawfully.  Business and campaigners should be prepared to challenge legislation which is made without proper legal authority, which is substantively unfair, or which is made without following an appropriate procedure.  No one affected by the challenges and opportunities Brexit provides can afford to be passive.

Our Regulatory and Trade team have long expertise in engaging with the Government in respect of policy and new legislation, as well as in bringing and defending challenges to secondary legislation.  Contact David Northfield for an initial discussion on how the Government's Brexit project may present challenges or opportunities for you and how you can best meet these. 

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