Something old, something new: busting some myths about Statutory Instruments and Brexit

Pywell, Stephanie (2019). Something old, something new: busting some myths about Statutory Instruments and Brexit. Public Law pp. 102–120.


Much of what law undergraduates learn about delegated, or secondary, legislation is incorrect, and this article attempts to dispel four common myths. The first myth is that deleted legislation has several forms, including Orders in Council, Orders of Council and Statutory Instruments. In fact, Orders in Council, Orders of Council, Rules, Regulations and Orders are all forms of Statutory Instrument (SI). The second myth is that delegated legislation is scrutinised by Parliament, which ensures its democratic accountability. The 18 variants of processes for making SIs involve scrutiny that has been described as: 'negligible; entirely theoretical', 'palpably unsatisfactory' and 'woefully inadequate'. The third myth is that delegated legislation is confined to technical details that MPs and peers would not understand. This is true of some SIs, but some Acts enable Ministers to make entire schemes of law, including creating crimes that attract prison sentences. The fourth myth is that the House of Lords often defeats the Commons. Responses to the 2015 Strathclyde Review show that the main risk to democracy is posed by the delegation of excessive law-making powers to the Government. The article also busts a fifth myth, beloved of Brexiteers: that the UK's exit from the EU will enable Parliament to 'take back control' of the UK's laws. The reality is that huge swathes of law-making power will pass directly to Ministers. It is vital that academics and responsible citizens understand what the forms of secondary legislation are and what each should be used for, as well as the difficulties and tensions arising from the way that it is made, and the reforms that are so urgently needed. This understanding will enable informed analysis and criticism of the executive’s use – and potential abuse – of SIs as it revels in its unaccustomed freedom from the shackles of EU law.

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