In the run-up to the UK’s exit from the EU we will be tracking the progress made by government and Parliament in preparing the statute book for exit day. Our analysis draws on parliamentary data and our own Statutory Instrument Tracker which we built several years ago to support our research on delegated legislation.
Last updated: 19:03, 25 June, 2019
Table of contents:
- How many Brexit Statutory Instruments does the government plan to lay before Parliament?
- How many Brexit SIs has the government laid before Parliament so far?
- How many Brexit SIs are being laid before Parliament each week?
- What is the average length in pages of a Brexit SI each month?
- Which Brexit SIs have completed their parliamentary scrutiny?
- Which government departments are laying the most Brexit SIs?
- Which Acts of Parliament are being used to lay Brexit SIs?
- How many Brexit SIs amend Acts of Parliament?
- What powers and scrutiny procedures are being used to lay the SIs?
- What progress is being made by the parliamentary sifting committees?
- How many proposed negative SIs have been upgraded?
- Statutory Instrument Tracker: learn about the tool that helps inform the Brexit SI Dashboard
Government ministers initially said that they expected to lay between 800 and 1,000 Statutory Instruments (SIs) to prepare the statute book for exit day, primarily using powers in the EU (Withdrawal) Act 2018. In September 2018 ministers indicated that the final figure would probably be closer to 800 than 1,000, and in November 2018, this figure was revised down to approximately 700 SIs, although it was stressed that this figure might also be subject to fluctuation in the weeks ahead. In January 2019, the number of Brexit SIs needed by exit day was revised down again to “fewer than 600”. On 4 April, Leader of the House of Commons, Andrea Leadsom said that the programme of Brexit statutory instruments was “almost complete” and that the government expected to lay about 550 in total.
- 539 Brexit-related SIs have been laid since the EU (Withdrawal) Act received Royal Assent on 26 June 2018. Of these:
- 371 have been laid using powers in the EU (Withdrawal) Act 2018 only;
- 50 have been laid using powers in other non-Brexit Acts of Parliament;
- 64 have been laid using a combination of powers in the EU (Withdrawal) Act 2018 and in other Acts of Parliament.
- 54 have been laid using powers in other Brexit Acts of Parliament.
Total number of Brexit SIs laid before Parliament
The number of SIs laid using powers in the EU (Withdrawal) Act, powers in other non-Brexit Acts of Parliament, a combination of powers in both the EU (Withdrawal) Act and other Acts, or powers in other Brexit Acts and the progress made towards the government's original target range of 800 to 1,000 SIs by exit day, and its two revised targets (RT) of approximately 700 (RT Nov 2018) and 600 (RT Jan 2019) SIs by exit day.
How many Brexit SIs have been laid under other Brexit Acts?
Number of Brexit SIs laid under other Brexit Acts
(Source: Hansard Society Statutory Instrument Tracker data)
The government promised that, as far as possible, it would plan the laying of its Brexit SIs in order to avoid a ‘peak and trough’ approach that would inhibit Parliament’s capacity to scrutinise the proposed changes.
From EUWA Royal Assent in late June 2018, just 51 Brexit SIs were laid in the first three months (July to Sept) or 9% of the current total number. The number of Brexit SIs more than doubled by the end of October. November was the busiest month with 116 (22% of total number) laid before Parliament. December, January and February 2019 were perhaps the most consistent months with around an avg. 80 Brexit SIs laid in each of those months. There was a tendency for the most SIs to be laid in the final weeks of the month – November saw 53 Brexit SIs laid in its final week, January 2019 saw 24 SIs laid on the 31st alone.
The average length in pages of a Brexit SI each month
(Source: Hansard Society Statutory Instrument Tracker data) *To date
Following the granting of Royal Assent to the EU (Withdrawal) Act on 26 June, there were 40 weeks until the initial exit day of 29 March 2019 (of which week 1 was not a full working week, as Royal Assent was granted on a Tuesday).
Weekly targets
If the government’s original minimum target of 800 SIs had to be laid, then an average of 20 SIs had to be laid in each of those 40 weeks.
Under the government’s first revised minimum target of 700 SIs, then an average of 18 (rounded up from 17.5) SIs needed to be laid before Parliament in each of those 40 weeks. Under the second revised target of 600 SIs, an average of 15 SIs had to be laid in each of those 40 weeks.
Of the 539 Brexit SIs laid before Parliament so far, 496 (92%) have now completed their passage through Parliament.
286 Brexit SIs (54%) have been subject to the affirmative procedure and therefore require debate and approval. On average it takes usually between six and eight weeks for an affirmative SI to complete its passage through Parliament. It has taken an average of 10 weeks for Brexit affirmative SIs to make their way through Parliament this session.
To date no Brexit SIs have been rejected by Parliament.
Which government departments are laying the most Brexit SIs?
Number of Brexit SIs laid by government departments, non-ministerial departments, agencies and public bodies
(Source: Hansard Society Statutory Instrument Tracker data)
To date, the 528 Brexit SIs laid before Parliament have been produced by…
- 17 ministerial departments
- 3 public bodies (Government Equalities Office, Intellectual Property Office and the Medicines and Healthcare Products Regulatory Agency)
- 1 non-ministerial department (HM Revenue & Customs)
The Department for Transport has thus far laid 65 SIs. A National Audit Office assessment of the Department’s readiness for Brexit published earlier this year reported that the Department planned to produce 63 new exit-related SIs (on top of 64 SIs to support its business-as-usual requirements).
850 separate bits of legislation have now been grouped into 86 SIs … and, being technically complex, are 150 pages long in some cases
In contrast, a recent National Audit Office report examining the readiness for Brexit of the Department for Environment, Food and Rural Affairs (Defra) noted that the department needed 93 SIs ‘to complete the conversion of EU law into UK law at the point of exit’.
In subsequent evidence to the House of Commons Public Accounts Committee on 15 October 2018, the Department’s Permanent Secretary said that about 850 separate bits of legislation have now been grouped into 86 SIs, almost all of which have a devolution angle and, being technically complex, are 150 pages long in some cases. The Department has laid 122 Brexit SIs.
In addition to the EU (Withdrawal) Act, powers in 41 other Acts of Parliament have been used to lay 166 Brexit SIs
- Alcoholic Liquor Duties Act 1979
- Channel Tunnel Act 1987
- Childcare Act 2006
- Communications Act 2003
- Companies Act 2006
- Companies (Audit, Investigations and Community Enterprise) Act 2004
- Customs and Excise Management Act 1979
- Customs and Excise Duties (General Reliefs) Act 1979
- Data Protection Act 2018
- Employment Agencies Act 1973
- Energy Act 2013
- European Communities Act 1972
One of the most controversial elements of the EU (Withdrawal) Act is the conferring of powers on ministers to amend or repeal primary legislation by Statutory Instrument.
- 130 of the 528 Brexit SIs laid before Parliament make amendments to Acts of Parliament.
Percentage of Brexit SIs that amend primary legislation
(Source: Hansard Society Statutory Instrument Tracker data)
The government has laid 42 ‘wash-up’ SIs amending previous Brexit SIs, sometimes extensively, usually to rectify drafting errors, omissions and the need for clarification.
Overall, since July 2018, 52 Brexit SIs have been withdrawn and re-laid by the government. On average, about 30 SIs are withdrawn in a parliamentary session. This increase is not surprising given the volume and complexity of the legislation.
What powers and scrutiny procedures are being used to lay the SIs?
Procedure used to lay Brexit SIs under powers in the EU (Withdrawal) Act (solely or in combination with powers in other Acts of Parliament)
(Source: Hansard Society Statutory Instrument Tracker data)
Procedure used to lay Brexit SIs under powers in non-Brexit Acts of Parliament
(Source: Hansard Society Statutory Instrument Tracker data)
Procedure used to lay Brexit SIs under powers in Brexit Acts of Parliament other than the EU (Withdrawal) Act
(Source: Hansard Society Statutory Instrument Tracker data)
Of the 435 SIs laid using powers in the EU (Withdrawal) Act 2018…
- 237 have been laid as proposed negative SIs and are subject to the parliamentary committee sifting process created under schedule 7 of the Act:
- 197 have been made under section 8(1) of the Act to correct deficiencies in retained EU law arising from Brexit.
- 3 have been made under section 23(1) of the Act enabling ministers to make appropriate amendments to legislation as a consequence of the Act.
- 3 have been made under both the section 8(1) and section 23(1) powers.
- 34 have been made under both section 8(1) of the Act and a power in another Act of Parliament.
- 190 have been laid as draft affirmative SIs:
- 144 have been made under section 8(1) of the Act.
- 1 has been made under section 23(1) of the Act.
- 12 has been made under both the section 8(1) and section 23(1) powers.
- 1 has been made under para 1(2)(b) of Schedule 1 of the Act.
- 1 has been made under section 20(4) of the Act
- 30 have been made under section 8(1) and a power in another Act of Parliament.
- 8 have been laid as made affirmative SIs under the urgent case procedure:
Of the 50 SIs laid using only powers in other non-Brexit Acts of Parliament…
- 48 have been laid as negative SIs (not being subject to the same sifting process created for negative SIs under the EU (Withdrawal) Act, they will be afforded less scrutiny).
- 2 have been laid as draft affirmative SIs.
Of the 54 SIs laid using only powers in other Brexit Acts of Parliament…
- 31 have been laid as negative SIs (not being subject to the same sifting process created for negative SIs under the EU (Withdrawal) Act, they will be afforded less scrutiny).
- 7 have been laid as draft affirmative SIs.
- 25 have been laid as made affirmative SIs.
The new House of Commons European Statutory Instruments Committee (ESIC) and the House of Lords Secondary Legislation Scrutiny Committee (SLSC) are tasked with ‘sifting’ proposed negative SIs laid using powers in the EU (Withdrawal) Act. The committees met for the first time in September to sift the Brexit SIs and decide whether any of them should be upgraded to the affirmative scrutiny procedure and thus be debated by MPs and Peers.
Proposed negative SIs considered by Parliament's sifting committees
The number of proposed negative SIs (to be laid using powers in the EU (Withdrawal) Act) that have been considered by the House of Commons European Statutory Instruments Committee (ESIC) and the House of Lords Secondary Legislation Scrutiny Committee (SLSC) for possible upgrade to the affirmative scrutiny procedure (Source: House of Commons ESIC and House of Lords SLSC reports and Hansard Society Statutory Instrument Tracker data)
To date:
- 226 proposed negative SIs have been considered by the House of Commons European Statutory Instruments Committee (ESIC). It has recommended an upgrade in the scrutiny procedure for 43 of them.
- 226 proposed negative SIs have been considered by the House of Lords Secondary Legislation Scrutiny Committee (SLSC). It has recommended an upgrade in the scrutiny procedure for 41 of them.
- The two committees reached the same decision in favour of upgrading the scrutiny procedure in relation to 21 SIs (click ‘Show more’ to view them):
How many proposed negative SIs have been upgraded?
Number of proposed negative SIs upgraded to the affirmative scrutiny procedure
(Source: House of Commons ESIC and House of Lords SLSC reports and Hansard Society Statutory Instrument Tracker data)
- 63 proposed negative SIs have been recommended for upgrade to the affirmative procedure by the sifting committees.
- To date the government has accepted all 63 recommendations, upgrading the following:
- Animal Welfare (Amendment) (EU Exit) Regulations 2018
- Aquatic Animal Health and Alien Species in Aquaculture (Amendment) (Northern Ireland) (EU Exit) Regulations 2018
- Aviation Statistics (Amendment etc) (EU Exit) Regulations 2019
- Cash Controls (Amendment) (EU Exit) Regulations 2019
- Cat and Dog Fur (Control of Import, Export and Placing on the Market) (EU Exit) Regulations 2018
- Common Agricultural Policy and Agriculture and Horticulture Development Board (Amendment etc.) (EU Exit) Regulations 2018
- Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2018
- Companies, Limited Liability Partnerships and Partnerships (Amendment etc.) (EU Exit) Regulations 2018
- Common Rules for Access to the International Market for Coach and Bus Services (Amendment etc.) (EU Exit) Regulations 2019
- Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2018
- Criminal Justice (Amendment etc.) (EU Exit) Regulations 2018
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