The legislative challenges posed by Brexit and the unusual circumstances of the pandemic have led to a significant increase in the use of secondary legislation. The former Head of the Government Legal Department, Jonathan Jones, argues that mass use of statutory instruments is problematic, and that there should be a fundamental rethink of how and when they are used, debated and approved. He calls for a new Statutory Instruments Act to enable this ‘reset’.

Brexit and the pandemic have led to an increase in secondary legislation

Both Brexit and the COVID-19 pandemic have seen the government making increased use of secondary (or subordinate) legislation. This is where ministers make law in the form of (usually) regulations contained in a statutory instrument (SI), under powers conferred by parliament in an earlier Act. It’s ‘secondary legislation’ by distinction with ‘primary legislation’ – Acts of Parliament.

It is easy to see why governments like secondary legislation. The process of making regulations is normally much quicker and easier for ministers than trying to pass a new Act each time.

Well over 600 SIs were made to give effect to Brexit – mainly to make sure that pre-existing EU law ‘worked’ in the UK once we had left the EU. Some of the changes were technical and minor, though others were much more substantial. In addition, ministers have made over 500 SIs to legislate in response to the pandemic – including imposing lockdowns, travel restrictions and the closure of businesses.

There is nothing inherently unconstitutional about this. Secondary legislation is an established part of our system of law-making. It is open to our sovereign parliament to confer whatever powers it wants on ministers, subject to whatever conditions, limitations and procedures it wishes to impose. And ministers are entitled to exercise those powers, subject to review by the courts.

Using regulations to prescribe technical or procedural detail, pursuant to policies and structures set out in Acts of Parliament, is normally unexceptionable and indeed sensible: it avoids parliament being clogged up with unnecessary mundane business. On the other hand, some of the powers conferred on ministers are very wide and go well beyond merely technical or procedural matters. COVID-19 regulations have been used to impose the most intrusive restrictions on all aspects of national life.