Scrutiny of delegated legislation under the European Union (Withdrawal) Bill: interim report Contents

3Parliamentary scrutiny of the Government’s proposals for legislative change

16.The Bill makes no express provision for any scrutiny structure additional to the existing statutory provision for Parliamentary control of delegated legislation. In evidence to us, the Leader of the House and the Parliamentary Under-Secretary of State at the Department for Exiting the European Union both suggested that the use of these ‘tried and tested’ procedures would provide an appropriate framework for Parliamentary control of the process.13

17.In the White Paper which preceded the Bill, the Government recognised the need for discussion with both Houses on the means appropriate for scrutiny of the process, having regard to the scale of the exercise and the requirement to complete it by exit day.14 We therefore regard the Government’s proposals as set out in the Bill as a starting point for discussion, rather than as a prescription. As we have noted above, two committees in the Lords have expressed their own views on the structure which should be in place. Several amendments have already been tabled for Committee stage on the Bill.15 Rt Hon Keir Starmer QC MP, shadow Secretary of State for Exiting the European Union, and Valerie Vaz MP, shadow Leader of the House, gave evidence to us on the amendments proposed by the Opposition,16 and Rt Hon Dominic Grieve QC MP discussed with us the purpose of his amendments,17 which had much in common with a scrutiny system proposed by the Hansard Society.18

18.What all these proposals have in common is a system which allows Parliamentary bodies to take views on the merits of proposals for legislative change and to recommend further scrutiny in debate, and in certain circumstances the amendment of the proposal. This seems to us to be the crux of the issue: should decisions on the appropriate level of scrutiny for specific but so far undefined instruments be made by Ministers before they are presented to Parliament, or should they be matters for the House? It is of primary importance that the process by which European law is repatriated is, and is seen to have been, subject to proper parliamentary scrutiny. In our view, the Government’s proposals for scrutiny as provided for in the European Union (Withdrawal) Bill establish a system over which elected Members of Parliament have insufficient control over the means by which adequate scrutiny and consequential changes are to be achieved. We believe that it would be preferable to have a system for exercising control which could not give rise to any suspicion that the motives of the Government are to avoid scrutiny rather than ensure the means whereby from exit day the statute book contains a workable framework of law seamlessly transposed from existing EU law.

19.It is generally acknowledged that the scrutiny task for Parliament is unique and unprecedented. It is nevertheless a task which is, in theory, discrete and time-limited: there are a finite number of amendments to be made to existing statute to enable UK law to function effectively after exit day. Given the pressure of time and the need to establish a functioning system from the outset, we are not at present persuaded of any requirement for new and innovative structures to tackle the undoubted challenge for the House presented by the proposals in this Bill.

20.As we continue our inquiry into the use of delegated legislation for the process of exit from the EU, we will further consider the adequacy of the House’s existing structures for the control of delegated legislation, in particular in the context of the ‘Brexit bills’—several of which were announced in the Queen’s Speech of June 2017—which are intended to make substantive changes to existing legislation to reflect the Government’s policy choices.

A system for effective control of the delegated legislation proposed under the Bill


21.We outline in this report a system to examine, and authorise the exercise by Government, of the powers it has claimed in the Bill to change existing law by regulations. We consider that the scrutiny system we propose will have achieved its aims if the House is thereby recognised:

A scrutiny committee

22.The aim we have outlined above can, we consider, best be 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.

23.In our view this requirement ought to be met by establishing a new committee which could adapt the working methods of the European Scrutiny Committee, a body which has long experience of examining legislative proposals and determining which of them are of sufficient political and/or legal importance to require further consideration by the House. The work of that committee is effectively underpinned by the scrutiny reserve resolution, a resolution of the House which injuncts Ministers against further action on a legislative proposal until either the Committee has cleared it from scrutiny or the further consideration recommended in the House has taken place. This structure could, we believe, be swiftly adapted to meet the particular challenges posed by the Bill.

24.The committee would be required to examine every instrument laid before the House under the powers in the Bill, whether affirmative, made affirmative or negative. It would be charged with determining which such instruments were of political and/or legal importance: whether, for instance, a change in legislation proposed was of a substantive character amounting to a policy change, or whether a change proposed was outside the powers authorised by Parliament. The committee would have the power to recommend that any instrument identified as important should be further considered by the House: usually in a general committee, the form and operation of which the House would determine, but in exceptional circumstances on the floor of the House. It would be under an instruction to complete its scrutiny of an instrument within a defined period.

25.Alongside this regime we propose to invite the House to agree a scrutiny reserve resolution which would constrain Ministers from bringing any legislation into force unless and until it had first been cleared from scrutiny by the committee or had been considered in the manner recommended by the committee.

26.Witnesses expressed to us significant concern about the difficulty at present in amending proposed delegated legislation, whether in made or draft form.20 Key stakeholders without access to the drafting process may identify significant concerns with published drafts which cannot be effectively addressed through the present scrutiny process. The committee we propose ought to be able to receive and consider representations made by interested organisations and individuals outside Parliament.

27.Delegated legislation is by definition not susceptible to amendment by Parliament: as our witnesses explained, provision for Parliament to amend delegated legislation would run counter to the principle of delegation.21 It is nevertheless appropriate that, in common with legislative provision in other Acts which employ a form of super-affirmative procedure, the committee to be established should consider issues raised by the drafting of each instrument. Where appropriate, the committee should recommend that an instrument either be withdrawn and re-laid in a more acceptable form or (if a negative) be revoked and re-made.

28.The system we propose ought to be designed around the following key features:

Workload and timing

29.The committee would be required to undertake a substantial workload and work to exacting timescales. Those timescales are at present entirely in the hands of the Government, which is yet to publish any detailed scheme for the exercise contemplated in the Bill. The Government is still estimating that between 800 and 1,000 instruments will have to be brought into force between the notification of Royal Assent and exit day, which Ministers have told us is to be 29 March 2019.22

30.The Leader of the House indicated to us that the Government had introduced a process of quality control of delegated legislation, by requiring each proposal to be considered in the Cabinet Committee on Parliamentary Business and Legislation (PBL)23. Ordinarily secondary legislation needs only to have been agreed by the relevant Minister before it is laid before Parliament. No further details have been offered on how the additional control is to function, nor on its impact on timescales for the laying and expected approval of instruments.

31.A commitment on the part of the Government to increased quality control of delegated legislation is welcome. We do not, however, consider that this prior scrutiny in Cabinet Committee can, or should, substitute for the scrutiny of delegated legislation in this House.

32.Similarly, the Government must guard against the evident risk of delay occasioned by introducing a potential bottleneck into the system. We recommend that the Government publish, as soon as possible, a statement on the process whereby delegated legislation under the Bill is to be processed and approved for presentation to Parliament, together with an outline schedule for the laying of instruments before the House. This schedule must be updated regularly and at a minimum within seven days of each meeting of the Parliamentary Business and Legislation Committee where relevant delegated legislation is considered.

33.Departments ought to aid effective scrutiny of their proposals by publishing in advance, wherever possible, exposure drafts of instruments for comment.

34.In order to balance the requirements of effective scrutiny and efficient despatch of business, decisions on the exercise of the scrutiny reserve ought to be taken by the committee which we propose within a defined period to be set out in its order of reference. The efficiency of the committee’s operation will depend on the flow of instruments to be laid by the Government and the readiness of Departments to respond to any issues raised by the committee. Departments, and the Parliamentary Business and Legislation Committee, should therefore plan for a steady flow of instruments to be laid before Parliament, to allow the committee to schedule its programme and to avoid unnecessary peaks and troughs in its workload.

Scrutiny in the House of Lords

35.In this report we make no recommendations relating to the House of Lords. We recognise that the other House has its own structures for consideration of delegated legislation, most notably through the Secondary Legislation Scrutiny Committee, and we would not wish at this stage to recommend a structure which would presuppose any decision the Lords might take on scrutiny of regulations under the Bill. We are grateful for the submissions made by committees of that House to our predecessor committee’s inquiry.24 Those submissions, and the reports on the Bill made to date by the Constitution Committee,25 have identified many of the issues of principle and of practical scrutiny raised by the Government’s proposals.

36.Whatever structures are established in the two Houses, we hope that conditions will be established for them to work together as constructively as possible. A practical step would be provision in the standing orders governing the operation of relevant committees of each House that evidence submitted to one be automatically passed to the other, to reduce the burden on external stakeholders of making dual submissions. We are confident that separate bodies working on the same subject matter would find it productive to share information informally and to move in step as far as is possible, following the model of comity between the Regulatory Reform Committee and the Delegated Powers and Regulatory Reform Committee.

13 Q 41

15 A summary and overview of the amendments tabled up to 15 October 2017 is given in Simon Patrick, Scrutiny of Delegated Legislation in Relation to the UK’s Withdrawal from the European Union, The Constitution Society, 2017, para 50.

16 Qq 79–83

17 Qq 5, 12, 122

19 Clerk of the House of Commons (EUX 0010), para 26

20 For example The Association of British Insurers (EUX 0004) and UK Finance (EUX 0009)

21 Qq 14–16 (Mr Grieve; Hansard Society); Q 106 (Mr Starmer)

22 Qq 51–2 (Mr Baker)

23 Q 65 (Leader of the House)

24 House of Lords Delegated Powers and Regulatory Reform Committee (GRB 0014 and GRB 0031) and House of Lords Secondary Legislation Scrutiny Committee (GRB 0001 and GRB 0030)

25 House of Lords Select Committee on the Constitution, The ‘Great Repeal Bill’ and delegated powers, Ninth Report of Session 2016–17, HL Paper 123, and European Union (Withdrawal) Bill: interim report, Third Report of Session 2017–19, HL Paper 19

3 November 2017