Summary
The Procedure Committee has examined the provision made in the European Union (Withdrawal) Bill for Parliamentary scrutiny of the secondary legislation proposed to be enacted under the powers the Government claims in the Bill. We recommend ways in which the Bill should be amended to provide for a scrutiny structure in this House adequate for the purpose, and we recommend how such a system might operate. In particular we recommend the establishment of a committee to examine the legislative changes the Government proposes and identify those of political and/or legal importance. We will issue a further report with more detailed recommendations for changes to rules and practices necessary to establish the system we envisage.
The Bill as it stands makes no provision for amendment to the standard statutory procedures for control and approval of delegated legislation which have been in effect since 1947. There is considerable concern in the House and elsewhere about the scale and scope of the powers claimed to amend existing legislation. While these powers may be necessary, in view of the task which the Government envisages, their exercise must be subject to thorough and appropriate scrutiny by Parliament. The Government’s proposals for Parliamentary scrutiny, resting as they do entirely on existing procedures, do not go far enough. The task for the House is unique and unprecedented and requires a scrutiny mechanism to suit.
The scrutiny system we propose will have achieved its aims if the House is thereby recognised to have overseen all the necessary changes contemplated under the Bill by exit day, to have taken its scrutiny responsibilities seriously, to have taken ownership of the parliamentary processes, to have represented the interests of constituents, and to have improved the outcomes for the people of the UK. We think these aims are best achieved through a committee of the House which has an overview of the entire process of legislative change proposed and which has the capacity to swiftly develop both specialist expertise in the field and judgment as to which proposals made by the Government merit further examination. The scrutiny model operated by the European Scrutiny Committee can readily be adapted to this purpose.
A committee based on the European Scrutiny Committee model would examine each instrument, whether affirmative or negative, laid before the House and would determine which was of sufficient political and/or legal importance to require further consideration by the House. It would recommend such instruments for debate in a general committee or, in exceptional circumstances, on the floor of the House. It would also be empowered to recommend that defective or inadequate instruments be revoked and re-made or, if in draft, withdrawn and re-submitted. External stakeholders would have an opportunity to make representations to the committee about the content of any instrument. The committee would be required to take account of the reports of the Joint Committee on Statutory Instruments, which we envisage would undertake technical scrutiny of all such instruments.
A resolution of the House would place a duty on Ministers not to bring any instrument into force until it had been cleared from scrutiny by the committee or the House had completed any further consideration of the instrument. This would apply equally to negative resolution instruments under the Bill: although they will have been made before they are laid before Parliament, the majority of them will not in any case be intended to enter into force until exit day.
The size and scale of the task which the Government proposes has clear implications for the scrutiny capacity of the House. The Government must assist in this by publishing, and regularly updating, a schedule for the laying of instruments before Parliament, and it must manage the flow of instruments so as not to occasion any unnecessary peaks and troughs in workload.
At this stage we make no recommendations for bicameral working. If a bicameral approach to the challenge before both Houses is not adopted, we nevertheless trust that the bodies of both Houses charged with scrutiny of these instruments will find it beneficial to share information and move in step as far as possible.
We make recommendations for amendments to be drafted and tabled to the Bill to provide a legislative structure within which the system we envisage can operate effectively.
3 November 2017