1Unfinished business from the 2015 Parliament
1.On Tuesday 18 April the Prime Minister, Rt Hon Theresa May MP, announced that the Cabinet had agreed to seek an early general election, to be held on Thursday 8 June. On Wednesday 19 April the House resolved, by the necessary two-thirds majority, that there should be an early General Election. Parliament will be dissolved on Wednesday 3 May, in accordance with the provisions of section 3(1) of the Fixed-term Parliaments Act 2011.
2.The dissolution of Parliament has naturally truncated the Committee’s work programme for the 2015 Parliament. We set out below matters where there is active or unfinished business which we recommend that the Committee to be established in the 2017 Parliament should examine.
Proposals for a ‘Great Repeal Bill’
3.The proposal for a ‘Great Repeal Bill’, to terminate the operation of the European Communities Act 1972 and, in its place, to provide a legal basis for the continued application of EU regulations and directives in the UK, pending revision or repeal, was first announced by the Prime Minister on 2 October 2016, during the Conservative Party Conference.
4.We thought it likely that this Bill would have significant implications for the House’s procedures for considering secondary legislation, particularly secondary legislation which, under delegated powers which the Government would claim in the Bill, would amend existing primary and secondary legislation—for instance, existing legislation which transposed the provisions of EU directives into UK law.
5.On 2 February 2017 we announced an inquiry and invited submissions to address any or all of the following terms of reference:
- The adequacy of the present procedure for scrutiny of secondary legislation, and potential approaches for sifting the potential volume of legislation to be incorporated
- The changes (if any) desirable to Commons procedures related to the delegation of powers or secondary legislation to address the likely scale and volume of ‘Great Repeal Bill’ legislation
- The powers likely to be necessary or justified in primary legislation to incorporate the existing body of EU legislation (the acquis communautaire or acquis) into domestic law upon repeal of the European Communities Act 1972 (ECA), including (but not necessarily limited to):
- powers to ensure the continuation in UK law of the legal order in force upon repeal of the ECA, with only such amendments as are necessary to ensure that the law applicable in the UK continues with the same effect):
- powers to amend domestic primary and secondary legislation implementing EU obligations in line with Government policy objectives, following the cessation of those obligations and the repeal of the ECA):
- powers to amend, in line with Government policy objectives, provisions of EU law presently given direct effect in UK law by operation of the ECA, following the incorporation of those provisions into UK law
- Whether so-called “Henry VIII” powers are likely to be necessary or justified in this respect; whether alternative drafting techniques may produce the same effect; and whether there are any areas of the acquis or existing domestic legislation which should be off limits to such powers1
- Whether a time limit should be set upon the availability of any powers delegated for these purposes.
6.The Government published a White Paper on its proposals for a ‘Great Repeal Bill’ on Thursday 30 March,2 and the Secretary of State introduced the proposals to the House by means of an oral statement.3 Despite a request from the Committee, no draft Bill or draft clauses for a Bill were published at that time and therefore no pre-legislative scrutiny has been possible.
7.We consider that the White Paper raises a number of further questions. On 31 March we invited further submissions to address additional terms of reference, cross-referenced to paragraphs in the White Paper, as follows:
- The justifications for the use of delegated powers to be claimed under the Bill, and what information should be provided to Parliament in support of such justification (para 3.9)
- The adequacy of the statutory procedures set out in the Statutory Instruments Act 1946 to handle the anticipated scope and volume of delegated legislation (box, page 23)
- The claims made by the Government about present parliamentary scrutiny of delegated legislation, with particular reference to practice in the House of Commons:
“Existing parliamentary procedures allow for Parliament to scrutinise as many or as few statutory instruments as it sees fit. Parliament can, and regularly does, both debate and vote on secondary legislation” (box, page 23)
- The principles and mechanism for determining whether any proposed secondary legislation should be handled under the affirmative procedure or the negative procedure (para 3.22)
- The information to be provided to Parliament to demonstrate the exercise of the powers claimed in respect of each instrument (‘anti-transposition notes’)
- The conventions and procedures to apply in providing for debates and votes on instruments under the negative procedure (para 3.21)
- The present practice of the Government in determining the procedure applicable to secondary legislation transposing EU Directives under section 2(2) of the European Communities Act 1972
- Considerations to be taken into account when determining the ‘most pragmatic and effective’ approach to take in balancing the need for scrutiny and speed (para 3.23)
- The merits or otherwise of requiring certain categories of instrument to be presented to Parliament in amendable draft form prior to approval (the so-called ‘super-affirmative’ procedure)
- The means whereby the powers claimed in the Bill are to be time-limited (para 3.25)
- The additional capacity, if any, required in the House of Commons for technical and policy scrutiny of the ‘800 to 1,000’ instruments the Government anticipates will be necessary (para 3.19)
- The prospects for any continued delegated powers required to ensure that UK legislation continues to operate in line with EU legislation, in circumstances where this meets the Government’s policy objectives.
8.We have received 31 submissions to date, from 27 individuals and organisations.4 In addition we held one session of oral evidence, with Professor Michael Dougan and Dr Mike Gordon of the University of Liverpool and Professor Catherine Barnard of the University of Cambridge, on 1 March.
9.Our approach to the inquiry has been deliberately collaborative. We invited written evidence from Committees in both Houses who were likely to have an interest in the matters under consideration. We have in consequence received memoranda addressing both sets of terms of reference from two committees in the Lords: the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee.5 We have also received evidence from the Presiding Officer of the Scottish Parliament, Rt Hon Ken Mackintosh MSP, from the Chair of the Constitutional and Legislative Affairs Committee of the National Assembly for Wales, Huw Irranca-Davies AM, and from the Scottish Government.6 In addition we note the extensive report on the Government’s proposals published by the House of Lords Constitution Committee on 7 March, which was referenced by the Government in the White Paper.7
Next steps
10.Had an early General Election not intervened, we would have sought to make a short report to the House before the end of the 2016–17 session setting out a number of issues arising from the oral and written evidence which we would have expected to have been addressed in the Bill once presented. It is likely that we would have gone on to scrutinise the Bill in the period between presentation and Committee stage, in order to inform the House of the implications of the Bill for the House’s procedures.
11.For obvious reasons, it is no longer possible to complete the work on the Government’s proposals in this session as we would have wished. We have nevertheless reported all the evidence received to the House for the benefit of the successor committee.8 We recommend that the Procedure Committee in the 2017 Parliament examine, as a matter of urgency, the implications for the House’s procedures of the Government’s proposals for a bill to repeal and replace the European Communities Act 1972 and to establish a basis in UK law for
a)the direct application, and eventual revision or repeal, of EU regulations which have direct effect in the UK, and
b)the amendment of existing UK primary and secondary legislation which currently implements the UK’s existing obligations under EU directives.
12.The Government has, in the White Paper, indicated that it is “mindful of the need to ensure that the right balance is struck between the need for scrutiny [of delegated legislation under the Bill, once enacted] and the need for speed”. It suggested that a discussion between Government and Parliament should begin in order to establish “the most pragmatic and effective approach to take in this area”.9
13.We recognise the need to establish procedures for scrutiny of secondary legislation under the ‘Great Repeal Bill’ which will ensure that the time of Members is directed to the scrutiny of legislation of the greatest legal and political importance. Arguably, this balance is not achieved in respect of existing procedures for parliamentary approval of secondary legislation under the Statutory Instruments Act 1946. We therefore welcome the Government’s intention to discuss with Parliament “the most pragmatic and effective approach” to achieving a balance which ensures the effectiveness of the House in scrutinising this secondary legislation.
14.In the White Paper the Prime Minister announced the Government’s intention to bring forward legislation to enact the ‘Great Repeal Bill’ proposals at the beginning of the next Session of Parliament.10 We have, therefore, to assume that this legislation would have been announced in the Queen’s Speech scheduled for mid-May 2017, and will now be announced in the first Queen’s Speech of the new Parliament, to take place in late June. It seems likely that, should the current administration continue after the election on 8 June, flagship legislation such as this would be introduced shortly after the Queen’s Speech and would be sent on its Commons passage without delay.
15.In our view, if the Government wishes to proceed swiftly with the Bill, then it should not delay in arranging for the establishment in the new Parliament of the select committees of this House with an interest in the issues. Those committees should be part of the “meaningful discussion” the Government envisages: without the full participation of such committees, the Government will struggle to achieve agreement on an approach to scrutiny of secondary legislation which will command widespread support.
16.It is axiomatic that the committees most interested in the matter—the Procedure Committee, the European Scrutiny Committee, the Joint Committee on Statutory Instruments and the Committee on Exiting the European Union—should be established as quickly as possible in the new Parliament, to examine any ‘Great Repeal Bill’ which may be introduced, together with associated proposals for handling of ensuing delegated legislation.
17.We recommend that, should a ‘Great Repeal Bill’ be announced in the Queen’s Speech at the State Opening of the first session of the 2017 Parliament, the chairs and members of the select committees named above should be in place before the Bill starts its legislative journey.
Revision of Standing Orders
18.Our predecessors published, at the end of the 2010 Parliament, a comprehensive proposal for the revision of the Standing Orders as they then stood.11 The proposal aimed to remove archaic and gender-specific language from the Standing Orders, to improve their comprehensibility and to reflect current practice more accurately.
19.The proposal was referred to us for consideration in this Parliament.12 Almost immediately upon appointment, however, we were required to examine the new administration’s own project for Standing Order revision, in the form of proposals for Standing Orders to implement a commitment to introduce a system of ‘English votes for English laws’. As we have previously observed, the Government’s proposals added 15 new Standing Orders to the existing corpus and amended 13 others: they represent 12 per cent of the volume of the 2016 edition of Standing Orders.13
20.This substantial amendment to Standing Orders has had a consequential effect on our proposals, several of which will require redrafting. Given that the focus of the Government has been on implementation of new systems based on Standing Orders, rather than revision of the existing corpus, it is perhaps understandable that progress on the latter has been slow. We nevertheless understand that there is now a willingness on the part of the Government to contemplate supporting a wholesale revision of Standing Orders, based on the initial proposals made by our predecessors.
21.We recommend that the Procedure Committee in the 2017 Parliament take forward the proposals for revision of Standing Orders contained in the Annex to the Sixth Report from the Procedure Committee, Session 2014–15, HC 649, with a view to securing the support of the House for a wholesale revision based on those proposals.
Scrutiny of the Government’s Supply Estimates
22.Examination of the House’s financial procedures has been a priority for the Committee in this Parliament. On 19 April we published the first report to emerge from this workstream, which examined changes in procedure and practice which could lead to better practical scrutiny of the Government’s supply estimates—the annual spending plans on the basis of which the House formally approves the release of money to the Government from the Consolidated Fund.14
23.We recommended a significant change in practice, whereby the Backbench Business Committee would in effect take over responsibility for allocating debates on the three Estimates days to be held each session, while the Liaison Committee—which presently has that responsibility—would in turn receive an allocation of three backbench days for allocation to debates on select committee reports.15 In our view, this change would promote better engagement across the House with formal scrutiny of Government spending plans on the three days in the House’s year when such matters are debated on the floor of the House. We recommend that the Backbench Business Committee and the Liaison Committee in the new Parliament take forward work to implement the recommendations in our Fifth Report of Session 2016–17 on allocation of debates on Estimates days.
24.We draw the attention of our successor Committee to the further recommendations in our report on scrutiny of Estimates, and the indications of further work we had planned to undertake later in this Parliament. We also expect the Government to provide the new Committee with a full response to the recommendations contained in that report which concern the Government.
25.In particular we identify the issue of consideration by the House of the Government’s multi-annual spending plans set out in Spending Reviews, since these increasingly govern the spending choices presented to the House in the annual Estimates. Our successors may also wish to take forward our proposals for rescheduling the presentation of Main Estimates so that they are approved by the House before the start of the financial year to which they relate. These proposals are closely connected to the proposals from the Chancellor of the Exchequer to move the annual Financial Statement and Budget Report to November each year, and our successors will no doubt wish to examine the implementation of these proposals closely.
1 “Henry VIII powers” are generally taken to mean powers granted to the Government in primary legislation which allow both primary and subordinate legislation to be amended or repealed by subordinate legislation alone, with or without further parliamentary scrutiny.
2 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017
4 The written evidence received in this inquiry is listed on page page 18
5 Delegated Powers and Regulatory Reform Committee (GRB 0014 and GRB 0031); Secondary Legislation Scrutiny Committee (GRB 0001 and GRB 0030).
6 Presiding Officer, The Scottish Parliament (GRB 0021); Chair of the Constitutional and Legislative Affairs Committee, National Assembly for Wales (GRB 0028); The Scottish Government (GRB 0010).
7 House of Lords, Select Committee on the Constitution, The ‘Great Repeal Bill’ and delegated powers, Ninth Report of Session 2016–17, HL Paper 123
8 The written and oral evidence has been published on the Committee’s inquiry page.
9 Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, para 3.23
10 Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, foreword
11 Procedure Committee, Revision of Standing Orders, Sixth Report of Session 2014–15, HC 654.
12 Procedure Committee, Matters for the Procedure Committee in the 2015 Parliament, Seventh Report of Session 2014–15, HC 1121, para 2
13 Procedure Committee, English votes for English laws Standing Orders: report of the Committee’s technical evaluation, Third Report of Session 2016–17, HC 189, para 6. The new Standing Orders (83J to 83X) take up 28 of the 226 pages of the 2016 volume (HC (2016–17) 2) of Public Business Standing Orders (12.3 per cent of 226 pages).
14 Procedure Committee, Authorising Government expenditure: steps to more effective scrutiny, Fifth Report of Session 2016–17, HC 190
15 Ibid, paras 77–84
28 April 2017