Just-published research from the Institute for Government has laid bare the extent to which preparing for Brexit has disproportionally struck the legislative work of different Whitehall departments.
The Department for Environment, Food and Rural Affairs stands head and shoulders above all others in relation to the number of Brexit-related statutory instruments (SIs) it has laid before parliament in the current session. The figure – well over 100 – outstrips the entire SI count of all but a handful of other departments, Brexit-related or not, and accounts for more than half of Defra’s SI workload.
Only the Treasury introduced more SIs between 21 June 2017 and 13 June 2019 – the Institute for Government’s research period, with more than 230 statutory instruments. However fewer than 100 of those were Brexit-related.
Close on the heels of Defra in terms of their SI count were the Department for Business, Energy and Industrial Strategy and the Department for Transport.
The IfG said that while the Treasury and the business department were traditionally responsible for high numbers of statutory instruments, Defra had seen a doubling of the volume of secondary legislation it laid before parliament when the two most recent sessions were compared.
Conversely, report authors Alice Lilly and Joe Marshall said other departments had reduced their SI numbers, with the Department for Work and Pensions, the Cabinet Office and the Ministry of Defence all cutting their SI numbers. All produced some Brexit-related SIs, however.
Lilly and Marshall said the Brexit-related push in secondary legislation had also been concentrated in the second half of the current parliamentary session as the government actively prioritised it in the runup the original Article 50-mandated Brexit Day of 29 March.
They said that while then-prime minister Theresa May’s government had been “confident” all of the secondary legislation needed for a March Brexit had been passed, some of the SIs had since needed updating because the EU law they related to had changed.
Despite the government still working towards a new 31 October Brexit Day, Lilly and Marshall said the pending end of the current parliamentary session – and possibility of a general election in weeks – left question marks over Brexit-related legislation that has still to make it onto the statute books.
“Five Brexit bills are still waiting to return to the Commons,” they said. “As Brexit tensions have increased, the government has been less and less able to rely on its slim Commons majority to fend off defeats – leading to parliamentary gridlock.
“The immigration, fisheries and agriculture bills are all paused at a stage where they are eligible to be carried over to the next session.
“However, the two remaining Brexit bills – trade and financial services – cannot be carried over to the next session under current parliamentary rules. Given the government has said it has ‘workarounds’ for the Trade Bill, and is highly unlikely to be able to pass the Financial Services Bill before prorogation, it seems likely that both bills will fall.
“But legislating on these policy issues cannot be postponed forever: the parliamentary hurdles will have to be faced at some stage in the next session.”
Elsewhere, Lilly and Marshall noted that the declining relations between government and parliament over the course of recent months – tellingly even before prime minister Boris Johnson’s decision to withdraw the party whip from Tory grandees including Sir Ken Clarke, Sir Oliver Letwin and Sir Nicholas Soames after parliament voted yesterday to compel him to ask for a Brexit extension to avoid a no-deal exit.
Their report found MPs were operating in an “increasingly fractious atmosphere”, managing their own views in the context of competing demands from their constituents, colleagues and parties.
Lilly said that while the fallout from the UK’s decision to leave the European Union had dominated the session, the research showed Brexit related issues had only accounted for around one-fifth of debate time spent in the Commons’ main chamber.
“The politics of the session have been shaped by both Brexit and minority government,” she said. “But Brexit hasn’t affected every aspect of parliamentary activity, and the fact that MPs have spent most of their time on other business is a good reminder that they have plenty else to be doing besides.
Marshall added: “As the current session comes to an end, the prime minister’s decision to prorogue Parliament and attempts by MPs to prevent no deal have placed additional pressure on Parliament’s ways of working and its relationship with government – raising wider questions about the need to reform how parliamentary time is allocated and government activity is scrutinised.”
The IfG's Parliamentary Monitor 2019 report can be read here.