Conclusions and recommendations
The Bill’s provisions for amendment of legislation
1.We draw to the special attention of the House the report on the European Union (Withdrawal) Bill made by the Delegated Powers and Regulatory Reform Committee of the House of Lords, the committee of Parliament which specialises in the scrutiny and control of Government proposals for the delegation of powers in legislation. The views of this committee—which has, exceptionally, reported on the Bill before it has entered the Lords—merit the attention of the whole House. (Paragraph 15)
Parliamentary scrutiny of the Government’s proposals for legislative change
2.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. (Paragraph 18)
3.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. (Paragraph 19)
4.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. (Paragraph 20)
5.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:
- to have overseen the implementation of 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. (Paragraph 21)
6.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. (Paragraph 22)
7.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. (Paragraph 23)
8.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. (Paragraph 25)
9.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. (Paragraph 26)
10.The committee we propose ought to be able to receive and consider representations made by interested organisations and individuals outside Parliament. (Paragraph 26)
11.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. (Paragraph 27)
12.The system we propose ought to be designed around the following key features:
- The timely, effective and consistent consideration of all instruments laid before the House under the powers in the Bill;
- A method for swift sifting of material to allow for the unimpeded passage of uncontroversial instruments;
- A mechanism to bring to the attention of the House, for further debate, any instrument considered to have political or legal importance;
- A route for stakeholders to express to the committee their views on the political importance and/or the drafting of the instrument;
- Provision for the committee to challenge the Government on the content or the drafting of an instrument and where necessary to recommend amendments;
- A requirement for the committee to have regard to the reports of the Joint Committee on Statutory Instruments, the committee specialised in technical scrutiny of delegated legislation;
- The strength and flexibility to work within the timetable constraints of leaving the EU by exit day while ensuring that changes to the statute book are thoroughly and consistently examined by Parliament, and
- A time limit on the committee’s operation: its functions should cease once it has cleared from scrutiny the last instrument to be laid before Parliament under the powers in the Bill. (Paragraph 28)
13.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. (Paragraph 31)
14.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. (Paragraph 32)
15.Departments ought to aid effective scrutiny of their proposals by publishing in advance, wherever possible, exposure drafts of instruments for comment. (Paragraph 33)
Amendments to the Bill
16.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. (Paragraph 34)
17.Some statutory provision will be required to support the system we propose. While we do not specify the drafting of any amendment to the Bill, we consider that Schedule 7 to the Bill should be amended to provide that:
a)Ministers shall present to Parliament, alongside each instrument to be made under the Bill, an explanatory memorandum setting out material relevant to the House’s consideration of the instrument, to include:
- an explanation of how each provision of the instrument amends existing law, why each such provision is required and whether each such provision would make a substantial change to the effect of the law;
- for regulations to be made under clause 7 of the Bill, an explanation of how the regulations will correct any failure of retained EU law to operate effectively;
- for regulations to be made under clause 8 of the Bill, an explanation of how the regulations would prevent or remedy any breach of the UK’s international obligations arising from the UK’s withdrawal from the EU, and
- for regulations to be made under clause 9 of the Bill, an explanation of why it is necessary for the proposed provision of the withdrawal agreement to be in force before, or on, exit day.
b)The House of Commons may designate a committee to consider each instrument proposed to be made under the powers delegated in the Bill;
c)Ministers shall have regard to the report of such a committee on any such instrument;
d)In respect to a committee report on any such instrument, a Minister shall be under a duty
i)to provide such further information as the committee may require; and
ii)either
- to revoke and re-make a negative instrument, or to withdraw and re-lay an affirmative instrument, in accordance with the committee’s recommendation, or
- to lay before the House a statement as to why the Minister considers that an instrument subject to negative resolution should nevertheless come into force or an instrument subject to affirmative resolution should be proceeded with in its original form. (Paragraph 38)
3 November 2017