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

Publications / Articles

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

18 Feb 2019

The cancellation of this week's House of Commons recess provided the government with an extra few days to hold debates on affirmative Brexit SIs. But the low number of debates makes it a wasted opportunity. The government can get its Brexit SIs into force by 29 March, but probably only at the expense of what limited scrutiny already takes place for SIs.

,
Senior Researcher, Hansard Society

Get our latest research, insights and events delivered to your inbox

Share this and support our work

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.

Latest / Highlights

News / Parliament Matters Bulletin: What’s coming up in Parliament this week? 15-19 September 2025

Peers will vote on the assisted dying bill’s Second Reading, while MPs will question the new Home Secretary Shabana Mahmood MP and Lord Chancellor David Lammy MP. The Commons will debate the Employment Rights, English Devolution and Community Empowerment, and Sentencing Bills, as Peers examine the Planning and Infrastructure and Children’s Wellbeing and Schools Bills. Committees will hear evidence on arms exports to Israel and the Online Safety Act. MPs will also debate an e-petition on SEND support and consider a Ten Minute Rule Bill on child poverty strategy, including removing the two-child limit for Universal Credit. The youngest minister in nearly two centuries will make his first appearance before a Select Committee. ❓ We value your thoughts. Please click here to let us know what you think of the Parliament Matters Bulletin in our reader survey.

News / Assisted dying bill - special series #16: The Bill makes its debut in the House of Lords - Parliament Matters podcast, Episode 106

As Peers embark on a marathon two-day Second Reading debate on the Terminally Ill Adults (End of Life) Bill – the measure that would legalise assisted dying in England and Wales – we are joined by former Clerk of the Parliaments, Sir David Beamish, to decode the drama. With more than two hundred members of the House of Lords lining up to speak, Sir David explains why, despite the intensity of the arguments, no one expects the Bill to be rejected at this stage. Instead, the real fight will come later, after Peers get into the clause-by-clause detail and see what defects can be remedied. Please help us by completing our Listener Survey. It will only take a few minutes.

Briefings / The assisted dying bill: A guide to the legislative process in the House of Lords

Having passed through the House of Commons, the Terminally Ill Adults (End of Life) Bill - the Bill to legalise assisted dying in England and Wales - must now go through its legislative stages in the House of Lords. This guide explains the special procedures for legislation in the House of Lords, and for Private Members’ Bills in particular. It answers some frequently asked questions, including how Peers might block the Bill, and gives an explanation of each stage of the process, from Second to Third Reading.

Briefings / Delegated powers in the assisted dying bill: Issues for the attention of the House of Lords

Like many pieces of primary legislation, the assisted dying bill leaves much of the practical and policy detail to be worked out later by Ministers through regulations. After the Bill’s Second Reading in the House of Commons, we published a briefing which drew attention to two of its delegated powers. But since then the Bill has been heavily amended, prompting new questions: how have its delegated powers evolved, do these changes strengthen or weaken the approach to the delegation of ministerial power, and are further amendments needed and if so, why?

News / Is Parliament at the root of the country's problems? - Parliament Matters podcast, Episode 105

Does Parliament itself lie at the root of some of Britain’s political and economic difficulties? Lord Goodman argues that it does and so makes the case for urgent parliamentary reform. This week we also examine the implications of a Downing Street reshuffle that has created a “Chief Secretary to the Prime Minister,” raising new questions about accountability in the Commons. The discussion ranges from Angela Rayner’s uncertain position, Nigel Farage’s controversial US appearance, and the Greens’ leadership contest, to the growing use of artificial intelligence in parliamentary work. Please help us by completing our Listener Survey. It will only take a few minutes.