Brexit and Administrative Justice: An Early Analysis (Part II – Emerging Trends)

Brexit and Administrative Justice: An Early Analysis (Part II – Emerging Trends)

By Joe Tomlinson

In a previous post in this series, I introduced a framework for understanding trends in law and administration during the Brexit process. That framework had three parts: internal organisation issues; external coordination issues; and substantive legal issues. In this second post, I look at some important emerging trends in each of these areas.

Substantive legal issues

I will start by looking at substantive legal issues. The key trend here—and will not be news for public lawyers—is the large volume of statutory instruments the government will be using to facilitate Brexit. Much of this legal change is to allocate and reallocate administrative powers and duties. The Brexit novelty here is one of scale and speed. Ministers initially planned to lay 800-1,000 statutory instruments. Over the months, that figure has dropped to a planned amount of ‘fewer than 600.’

The Hansard Society are doing, as it long has done, sterling work analysing how statutory instruments are being managed. A recent check on their Westminster Lens dashboard reveals that 343 Brexit-related statutory instruments have been laid since the EU (Withdrawal) Act received Royal Assent on 26 June 2018. Of these:

• 247 have been laid using powers in the EU (Withdrawal) Act 2018 only;
• 41 have been laid using powers in other Acts of Parliament; and
• 55 have been laid using a combination of powers in the EU (Withdrawal) Act 2018 and in other Acts of Parliament.

Digging a little deeper, we can see some interesting trends. One major trend is the quickly-expanding size of statutory instruments. Going back to Westminster Lens, we are told that:

• 6,876 pages of legislation have been created by the 343 Brexit statutory instruments laid before Parliament to date;
• the average length of a Brexit statutory instrument is 20 pages;
• in the last parliamentary session (2016-17) the average page length of a statutory instrument was 11 pages;
• since August, the average number of pages for Brexit statutory instruments has increased each month (in August it was three pages; in December it was 33 pages);
• to date, the average length of each Brexit statutory instrument laid before Parliament in January is 32 pages; and
• The Department for Business, Energy & Industrial Strategy is responsible for one of the biggest statutory instruments to date—the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, which runs to 619 pages. This statutory instrument amends three Acts of Parliament, 26 statutory instruments, three Northern Ireland statutory instruments, and four regulations saved as direct retained EU law.

It appears, at least at the surface level, that the pile up of Brexit statutory instruments is being compensated for by cramming more into individual statutory instruments. It will be interesting to see how scrutiny procedures cope with this shift.

With the Hansard Society, the Public Law Project has established the SIFT Project to try to identify patterns in the drafting and scrutiny of statutory instruments. Though in its early, stages, there are some interesting patterns emerging from the research on how legal powers and duties of administrations are being changed. For instance:

• There appears to be some examples of administrative obligations being deleted unnecessarily. For instance, The Equality (Amendment and Revocation) (EU Exit) Regulations 2018 amends The Equality Act 2010 (Amendment) Regulations 2012, which required the Treasury to carry out a review from time to time of insurance services to ensure they are implementing equal treatment between men and women. Under present legislation, the report ‘must in particular— (a) set out the objectives intended to be achieved by the regulatory system established by the Act insofar as it implements the Directive in respect of insurance services, (b) assess the extent to which those objectives are achieved, and (c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.’ These requirements for the report are being removed with no clear reason.
• Recitals in EU laws seem to be causing problems. EU Regulations are to be retained in their entirety by EU Withdrawal Act. However, some statutory instruments made under the Act do not appear to be making potentially needed corrections to the recitals of these legal instruments. There is no clear reason for this.
• Some of the explanatory notes state that they are in contemplation of no deal others do not. It is sometimes difficult to ascertain whether the statutory instruments that do not mention ‘no deal’ are in contemplation of no deal or will be operative in either eventuality.
• The explanatory notes are supposed to give notice of the major changes that are being made in legislation but some of them are failing to signpost changes. In the Timber and Timber Products and FLEGT (EU Exit) Regulations 2018, the Government made no mention of the removal of the important requirement for penalties to be ‘effective, proportionate and dissuasive.’ The Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2018 explanatory note also failed to record the removal of the requirement for dissuasive penalties.
• Ministers are required to give statements that record, among other things, that there are good reasons for the statutory instrument, that it does no more than is appropriate, and that it is a reasonable course of action. Some of the explanatory notes contain a boiler plate statement covering off the required statements a minister must make under the EU Withdrawal Act rather than giving reasons for why the Statutory Instruments comply with these requirements.

One longer-term question around statutory instruments and Brexit is whether—with Brexit forcing many in government to become more familiar with the drafting of and general use of statutory instruments—we will ever return to the pre-Brexit rates, of whether there will be a newly strengthened cultural orientation to legislate through this route.

External coordination issues

In terms of external coordination issues, the key choice is for government vis-à-vis an administrative function presently held by the EU is effectively three-fold: delete the function; assume the function on the national level; or continue to coordinate with the EU in the administration of the function. We are already seeing examples of each. For instance, an assumption of power is occurring relation to State Aid rules, where—under the State Aid (EU Exit) Regulations 2019—the UK’s Competition and Markets Authority is set take control of their enforcement for the first time. Similarly, in relation to coordination of social security across EU Member States the UK is assuming a new function and taking a new approach. As a result of the Social Security Coordination (Regulation (EC) No 883/2004, EEA Agreement and Swiss Agreement) (Amendment) (EU Exit) Regulations 2018, when UK nationals or EU nationals who have spent a period of time residing and working in the EU, but who now live in the UK, make a claim for a UK benefit or State Pension, the UK government can ask the claimant to provide, within reasonable time, the relevant information showing that they paid into another country’s social security regime in order to determine the amount the claimant is entitled to. However, in the event that the government deems the information provided by the claimant insufficient, the UK will no longer be required to fulfil any obligation to pay that individual.

In terms of functions that have simply been deleted, requirements to notify the EU Commission on ambient air quality and pollutant emissions have been removed—under The Air Quality (Miscellaneous Amendment and Revocation of Retained Direct EU Legislation) (EU Exit) Regulations 2018 and Air Quality (Amendment of Domestic Regulations) (EU Exit) Regulations 2018—without replacement. As for continuing coordination, there is—naturally, given the present political predicament—a great degree of uncertainty here.

The overall range of choices here will be of interest for multiple reasons. However, I would suggest there are two particularly interesting points here. First, the category of ‘deleted functions’ is one that it may be worthwhile paying particular attention to. What ends up in this category will, effectively, show what bits of the administrative state have been carved out as part of the Brexit process. Second, there is the question of how effectively powers and duties are institutionalised/integrated into their new domestic settings.

Internal organisation issues

In terms of internal organisation, much will be context-dependent. However, one under-discussed dimension of Brexit is that it comes as at a moment when the UK government is, after the recent apparent success of the Government Digital Service, feeling confident in its digital abilities (it is presently pursuing digitalisation reforms across areas of mass administration and in the justice system). With Brexit bringing the obvious pressures to process lots of decisions quick—and, preferably, at low cost—government is reaching for technology to help.

The major example is the EU Settlement Scheme. To apply, claimants must complete an online application. This portal opens to the public in March 2019, but is currently undergoing testing. As part of this process, individuals must demonstrate a continuous period of residency within the UK, where they have not been absent from the country for more than 6 months, within any 12-month period. To confirm and establish this period of residency, the Home Office are now testing automated checks, using the databases and systems of HMRC and the Department for Work and Pensions. Where it has been algorithmically determined that a claimant has not met the requirements automatically, they must then provide evidence to the contrary. I do not want to go into the technical details of the mechanism here (a recent ILPA report has done a superb job on that), but it is worth highlighting the Memorandum of Understanding (Process) between HMRC (Data Directorate) and Home Office. In this bureaucratically-titled document you can almost see the seeds of a digital, partially automated future of data-driven administration. This document, one of two agreements (the other of which has not been made public), is the basis for, conservatively, hundreds of thousands of automated decisions on immigration status. The price? The MOU itself states the ‘estimated API development and delivery charges in respect of Income Verification and EU Exit Settlement Schemes are estimated @ £1.1m.’ This is not all the costs of the automated aspects of the Scheme but it indicative that, in principle, the planned costs of the Scheme will be very low compared to more traditional forms of administration. How this scheme is implemented and how it works in practice will no doubt play an important role in shaping important norms vis-à-vis how administration uses automatic decision-making.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.

I am grateful to the Bonavero Institute and its team for the continuing forum they provide to reflect on Brexit, and particularly Kate O’Regan, Oliver Butler, and Annelen Micus. I am also grateful to Jeff King, Lorne Neudorf, and Jack Simson Caird for lively discussions on statutory instruments. I am particularly indebted to Alexandra Sinclair and Byron Karemba, both research fellows at PLP who are focusing on Brexit. Views expressed here, and any errors I made while expressing them, are my own.