The ‘Great Repeal Bill’ and delegated powers Contents

Chapter 3: Parliamentary scrutiny of delegated legislation laid under the ‘Great Repeal Bill’

74.Parliament will face an unprecedented challenge in scrutinising secondary legislation passed under the ‘Great Repeal Bill’. The Bill itself will no doubt be scrutinised in detail, and we expect Parliament’s attention will also fall heavily on any primary legislation brought forward to convert particular elements of EU law into UK law. As we have concluded above, however, there will still be substantial sections of what is currently EU law which will need to be amended—most likely by secondary legislation—in order to adjust them to work in a post-Brexit context.

75.In respect of the scale of the task, we note that the House of Commons library has stated that “there are at present nearly 20,000 EU legislative acts in force. These are mainly directives, regulations, decisions and international agreements, but they include a range of other instruments. Of these, around 5,000 EU regulations are directly applicable in all EU Member States.”35

Parliamentary scrutiny of secondary legislation

76.Before considering what changes might be required to deal with the particular challenges of the ‘Great Repeal Bill’, it is necessary to consider how well the process by which Parliament currently scrutinises secondary legislation works.

Box 1: Secondary legislation—an explanation

Secondary legislation is law made by Ministers (and certain public bodies such as regulators) using powers that have been conferred by primary legislation. It usually takes the form of statutory instruments. Statutory instruments are not amendable. 36

It is well known that bills go through a number of stages in both Houses before becoming Acts of Parliament. In contrast, delegated legislation is subject to much simpler procedures:

  • some statutory instruments do not have to be laid before Parliament at all;37
  • some are required only to be laid before Parliament without any subsequent scrutiny procedure; and
  • some are laid before Parliament and are then subject to a scrutiny procedure.

Of those subject to a scrutiny procedure, most are subject to one of two procedures:

  • The negative procedure under which an instrument is laid before both Houses, usually after being made. Either House may within 40 days pass a motion that the instrument be annulled (that is, revoked). The instrument may come into force at any time after it is made and remains in force until it expires or is revoked or annulled. Negative instruments are only debated if a Member specifically requests a debate.
  • The affirmative procedure under which an instrument is usually laid before Parliament in draft and must be approved by both Houses before it may be made. Affirmative instruments are always debated. Although there is no set timing for such debates, under House of Lords Standing Order 72 no motion to approve a draft affirmative can be taken until the Joint Committee on Statutory Instruments has reported on the instrument.

There are variations on these two procedures. For example, some Acts make provision for draft negatives (instruments subject to a negative procedure that must be laid before Parliament in draft for a period before they may be made) or made affirmatives (instruments which are made, and may even come into force, before being laid before Parliament for affirmative approval).

There are also a number of delegated powers which Parliament has determined should be subject to a level of Parliamentary scrutiny more rigorous than that required even under the affirmative procedure. More detail on these procedures is provided in Box 2 below.

Source: Delegated Powers and Regulatory Reform Committee (DPRRC), Special Report: Strengthened Statutory Procedures for the Scrutiny of Delegated Powers (3rd Report, Session 2012–13, HL Paper 19)

77.Following the Strathclyde Review of delegated legislation in December 2015, a number of committees, from both the Commons and Lords, published reports commenting on Parliament’s scrutiny of delegated legislation.38

78.This Committee’s report explained some of challenges faced by Parliament in scrutinising delegated legislation:

“Delegated legislation cannot be amended, so there is little scope for compromise. Far less time is spent by Parliament debating delegated legislation than primary legislation, and there is little incentive for members of either House, but particularly the House of Commons, to spend their precious time debating legislation that they cannot change. Finally, established practice is that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny where they are able to do so through secondary, rather than primary, legislation.”39

79.These are, in a nutshell, the reasons why it is generally considered inappropriate for secondary legislation to determine matters of significant policy interest. Yet, as we note above (see paragraph 46), those limitations are likely to be relaxed in relation to the delegated powers granted under the ‘Great Repeal Bill’. While we accept that this will, to some extent, be necessary Parliament must consider how, as a consequence, to address some of the issues we have identified with the current process of scrutinising secondary legislation.

The role of the House of Commons

80.The Commons Public Administration and Constitutional Affairs Committee noted in its response to the Strathclyde Review that even the current volume of secondary legislation “makes it difficult for Parliament to scrutinise more than a small proportion effectively and rigorously.” They add that “The sheer size and scale of the use of statutory instruments makes scrutiny, particularly in the House of Commons, an incredibly difficult task and Parliament has relied heavily on the House of Lords for the expertise and skill it has cultivated in scrutinising SIs [statutory instruments].”40

81.A number of witnesses to those inquiries stressed that the House of Lords is able to devote more time and attention to the scrutiny of secondary legislation than the House of Commons, particularly through the work of the Lords Secondary Legislation Scrutiny Committee, which considers the policy merits of all instruments laid before Parliament that are subject to a parliamentary procedure. Yet, as this Committee concluded in its report on the Strathclyde Review:

“We recognise the leading role that elected members of the House of Commons play in holding the Government to account. Consequently, effective scrutiny of delegated legislation depends as much on the House of Commons as the Lords. … Both Houses of Parliament, however, either together or separately, need to play an active role in considering how powers should be delegated appropriately in primary legislation, how those powers should be exercised by Government and the way in which both Houses scrutinise and approve delegated legislation.”41

82.This conclusion—that the scrutiny of secondary legislation must be carried out appropriately by both Houses of Parliament—is particularly true in the light of the expected volume of statutory instruments likely to result from the ‘Great Repeal Bill’, and the fact that they may well contain significant policy decisions or issues of principle that would, under less exceptional circumstances, be dealt with in primary legislation. We therefore welcome the inquiry announced by the House of Commons Procedure Committee on delegated powers in the ‘Great Repeal Bill’, which will include addressing the issue of 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”.42

Amending and rejecting secondary legislation

83.The Strathclyde Review was initiated after a Government defeat in the House of Lords on the Draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015. We do not intend to explore the details of those events—they have already been exhaustively explored in a number of other reports (see paragraph 77 above).

84.We note, however, that the difficulties arose partly because of the all-or-nothing nature of the current secondary legislation process. There is no mechanism for either House to amend statutory instruments, for the Government to be made to reconsider (save by the rather extreme route of rejecting an instrument in its entirety), or for the two Houses to reconcile any differing views that they might have. Some believe that the answer is for Parliament to have the ability to amend secondary legislation. Lord Newby, for example, told us that he was “rather keener on making it easier to amend SIs formally, because if—particularly in the context of Brexit—we have a whole stream of them, a lot of them will be done at great pace by the Civil Service.”43

85.The Secondary Legislation Scrutiny Committee addressed this issue in evidence to us:

“We acknowledge that some members of the House take the view that procedures should be introduced to enable amendment of secondary legislation. This may be the case, in particular, where the substance of an instrument is of such significance that the power to amend secondary legislation would provide a welcome opportunity to challenge the instrument in a targeted and effective way.

We note however that secondary legislation is intended to enable more efficient use of parliamentary time so that, as commented in Erskine May (2011) at page 667, “more time will be available for the discussion of major matters of public concern”. A general power to amend secondary legislation could, we believe, defeat that purpose. Arguably a preferable approach would be for Government to ensure that secondary legislation is used only for provision of “essentially subsidiary or procedural character” and to avoid lengthy, composite instruments. If this were the case, then the likelihood of any demand to amend an instrument would, we believe, be significantly lessened.”44

86.Baroness Smith of Basildon, Leader of the Opposition on the House of Lords, echoed these concerns: “My worry about amendment is that it could then apply across the board to SIs, so we will deal with them in the same way we deal with primary legislation, and we will go through the same arguments again.”45

87.We recognise that the existing procedures may be appropriate for the vast majority of statutory instruments, particularly when the scope of those instruments are strictly limited by the scope of the delegated powers set out in primary legislation. Problems arise, however, when the matters being dealt with by secondary legislation go beyond merely technical or administrative changes, or when the delegated power under which the statutory instrument is made is broad enough that Parliament cannot know, at the time at which it delegates that power, exactly how it will be used (particularly if the Government give no detailed indication of its expected use during the passage of the relevant bill.).

88.In the context of the ‘Great Repeal Bill’, when pressures of time mean that the changes required to EU law will most likely be unclear at the time the Bill is passed by Parliament, there must be subsequent opportunities for Parliament’s views to be taken into account by the Government when the delegated powers granted by the Bill come to be exercised. This need not be a formal mechanism for amendments—as Baroness Smith noted, “There may need to be a willingness from the Government to say, “I am going to take this away and bring it back”, because that would cover off the same point.”46 Given the likely uncertainty as to what exactly will be required to convert EU law into UK law, there will be occasions on which Parliament should be able to affect the content of secondary legislation determining matters of significant policy interest or principle. We consider how this might be achieved below.

Scrutinising secondary legislation laid under the ‘Great Repeal Bill’

89.There seems little doubt that Parliament will need to reconsider how it deals with secondary legislation to cope with the consequences of the ‘Great Repeal Bill’. As Dr Ruth Fox told us:

“It is inconceivable to me that, given the pressure of dealing with statutory instruments under existing procedures, the House of Commons in particular, but also this House, will be able to deal with a significant review of that much legislation, even over an extended period of time. I think that with the procedures and time constraints it will collapse under it.”47

90.David Lidington MP agreed that Parliament might need to re-evaluate its current processes:

“What we may have to look at, given the volume of possible secondary legislation, is whether we need to ask Parliament to have some bespoke arrangement for handling those things, given that, in order for business to have certainty, we will need to make sure we have a workable statute book on day one after exit.”48

91.We received a variety of suggestions as to how Parliament should scrutinise the delegated legislation laid under the ‘Great Repeal Bill’. The British Bankers’ Association felt that “either a Parliamentary Brexit sub-committee should be set up to scrutinise all delegated legislation and/or that the House of Lords’ Delegated Powers and Regulatory Reform Committee and the House of Lords’ Secondary Legislation Scrutiny Committee be upgraded and resourced appropriately to ensure that delays in decision-making are minimised.”49

92.WWF-UK told us that we:

“might want to consider whether it is necessary to … suggest that a new committee of each House dealing exclusively with GRB secondary legislation is warranted due to the volume, complexity and controversy of the ensuing secondary legislation. Such a committee could be divided into specialisms and be given the task of examining secondary legislation affecting environmental law, employment law, competition law etc. The committee could have powers to approve, amend or block statutory instruments or to refer them to the whole House for approval–such measures would ensure the proper level of scrutiny, clarity and procedure needed in order to uphold environmental protections.”50

93.The Bar Council suggested “adopting a Committee-based approach to scrutinising EU Exit legislation. It could, in particular, establish specialist Select Committees to scrutinise legislation on particular aspects of the acquis, where members could become specialists and be supported by expert staff. This would reduce the risk that important issues would be missed, and bring consistency within sectors.” They added that there should be an “adequate Parliamentary power of amendment of instruments.” They stated that:

“our present view is that cases appropriate for such a power would at least include provisions that:

94.The Secondary Legislation Scrutiny Committee meanwhile, suggested that while it would “be appropriate for some changes to be made by statutory instruments subject to the standard affirmative and negative procedures … other, more significant changes may require some form of strengthened scrutiny procedures.”52

95.While we agree that not all statutory instruments laid under the ‘Great Repeal Bill’ should be open to amendment, we recognise concerns that the sheer volume of delegated legislation that Government must produce is likely to lead to mistakes. As we stated at the very beginning of this report, we hope that the Government will see Parliament as a partner in this endeavour, and be willing to listen in an open and responsive manner to concerns raised about technical inaccuracies, or to views expressed about the manner in which EU law is being amended.

96.In our view, there are three challenges facing Parliament:

(1)How to deal with the volume of secondary legislation flowing from the ‘Great Repeal Bill’;

(2)How to ensure that Parliament can identify for more detailed scrutiny those statutory instruments that determine matters of significant policy interest or principle; and

(3)How to enable Parliament meaningfully to affect the content of those statutory instruments selected for additional scrutiny.

97.Parliament must therefore put in place procedures that allow the majority of delegated legislation laid under the Bill (those making changes of an uncontroversial nature) to pass without delay, while ensuring that delegated legislation which contains significant policy decisions is subject to meaningful scrutiny by Parliament—i.e. in a manner that allows the content of the instrument to be changed depending on the views expressed by both Houses.

98.As the Committee heard from its witnesses,53 that delineation cannot occur during the passage of the ‘Great Repeal Bill’—the task is simply too great for the Government to distinguish in advance all those areas where policy decisions will be needed. Professor Craig suggested that “The problem is identifying in advance, ahead of time, what will be an important change. It might be easy to identify when you see it, but to write in a legislative format which would be able to predict that in advance, I think, is extremely difficult.” He continued to suggest a solution:

“you would have to start thinking of a regime whereby you have these different processes on the table and you would have to build in an extra stage at which, when it became apparent how important the policy shift or the amendment was, there was the possibility of saying, “Okay, now it is clear that we need a super-affirmative procedure”, or something of that kind. One is going to have to build in, in process terms, that extra stage in order to ensure effective scrutiny.”54

99.This scrutiny would also guard against the risk that the Government might attempt—wittingly or unwittingly—to use the powers granted under the Bill to do more than is required simply to convert EU law into UK law. As Sir Richard Mottram told us: “there must be a massive risk that the Government will try to come forward with a whole series of changes that impact very directly on people and all aspects of their lives, cloaked under a rather more generalised formulation [of delegated powers].”55

100.The solution would seem to be a sifting mechanism within Parliament that considers whether a particular piece of delegated legislation contains policy decisions that should trigger an enhanced form of parliamentary scrutiny. Examples of enhanced forms of parliamentary scrutiny already exist (see box 2), and we draw the House’s attention to the recommendation of the Delegated Powers and Regulatory Reform Committee (DPRRC) in its report Special Report: Strengthened Statutory Procedures for the Scrutiny of Delegated Powers, that “in proposing a strengthened scrutiny procedure in any future Bill the Government should normally use an existing model rather than creating a new variation”.56 Parliament and the Government may therefore wish to consider whether it is possible to adopt one of the existing models of enhanced scrutiny procedures, rather than attempting to start from scratch.

Box 2: Enhanced scrutiny procedures

According to the DPRRC, there are currently 11 different strengthened scrutiny procedures. 57 The DPRRC has previously58 set out the common features between these different procedures as follows:

Requirement to consult prior to laying

Most of these statutory scrutiny procedures place a duty on the Secretary of State or the Minister to undertake a consultation before a draft order can be laid.

Requirement to lay supporting documents

All but one of these statutory procedures place an obligation on the Government to lay supporting documents at the outset of the Parliamentary process. This additional information is designed to support Parliament in carrying out effective scrutiny. There are variations about what supporting documents are required.

Power for a committee or either House to determine the level of scrutiny

Some of these statutory procedures give each House or a committee of each House charged with considering the orders (the relevant committee) the power to determine the level of scrutiny. In the other cases, the scrutiny procedure is fixed in the parent Act.

Power for relevant committee to veto a draft order

The Legislative and Regulatory Reform Act 2006 gives the relevant committee in either House a power to veto a draft order laid under that Act by recommending that “no further proceedings be taken in relation to the draft order”.59 This power of veto is mirrored in the three statutory procedures contained in the Localism Act 2011,60 two of which apply sections 15 to 19 of the 2006 Act and the other of which appears to be modelled on a modified form of those provisions. There is no similar power of veto in any of the seven other types of statutory scrutiny procedure.

Obligation on Government to consider recommendations or resolutions

Seven of these statutory scrutiny procedures place a legal duty on the Government to “take account of”, “consider” or “have regard to” recommendations made by the relevant committee or resolutions passed by either House. By contrast, the other four procedures all contain a more general provision for the Government to consider representations.

Provisions laid either as proposals or draft orders

For six of the 11 statutory scrutiny procedures, the parent Act specifies that what is laid is a proposal containing a draft order and then after a specified scrutiny period, the draft order itself may be laid. For the remaining five procedures, the process is different: the Government lays a draft order (rather than a proposal) for scrutiny and the procedure contains the provision for the Government to lay a revised draft after the scrutiny period has expired. Although the statutory provisions are inconsistent, in practice both procedures offer an opportunity for the Government to respond to issues raised during the Parliamentary scrutiny process by revising the original draft of the order without having to re-start the statutory procedure from scratch.

Source: DPRRC, Special Report: Strengthened Statutory Procedures for the Scrutiny of Delegated Powers

101.We note, in addition, that the DPRRC has already considered the possibility of expanding the use of these strengthened scrutiny procedures. In the same report it states that “We have considered whether the strengthened scrutiny procedures covered in this Report might appropriately be made available in respect of delegated powers which, while they are not Henry VIII powers, nonetheless give Ministers discretion to legislate widely across important areas of public policy. This could provide Parliament with an enhanced scrutiny role over significant statutory instruments that would otherwise be subject only to the affirmative procedure. We draw this possibility to the attention of the House.”61 The ‘Great Repeal Bill’ would seem a suitable candidate for such an expanded use of a strengthened scrutiny procedure.

102.Parliament is likely to face a significant challenge dealing with secondary legislation laid under the ‘Great Repeal Bill’. In order to mitigate the constitutional risks that will arise if the Government are given relatively wide discretionary powers to convert the body of EU law into UK law, we recommend the following:

(1)That the Minister sign a declaration in the Explanatory Memorandum to each statutory instrument amending the body of EU law stating whether the instrument does no more than necessary to ensure that the relevant aspect of EU law will operate sensibly in the UK following the UK’s exit from the EU, or that it does no more than necessary to implement the outcome of negotiations with the EU. We note that, if the overall restriction set out in paragraph 50 above is included on the face of the Bill, the Joint Committee on Statutory Instruments62 will have the role of assessing whether each statutory instrument laid under the Bill complies with that restriction, given that its remit includes considering whether each statutory instrument laid before Parliament is intra vires.

(2)That the Explanatory Memorandum to each statutory instrument sets out clearly what the EU law in question currently does (before Brexit); what effect the amendments made by the statutory instrument will have on the law (as it will apply after Brexit) or what changes were made in the process of conversion; and why those amendments or changes are necessary.

(3)That the Government make a recommendation for each statutory instrument as to the appropriate level of parliamentary scrutiny that it should undergo. We would expect that a statutory instrument which amends EU law in a manner that determines matters of significant policy interest or principle should undergo a strengthened scrutiny procedure.

(4)That a parliamentary committee(s) consider the Government’s recommendation, and decide the appropriate level of scrutiny for each statutory instrument laid under the ‘Great Repeal Bill’. If the two Houses perform this function separately, then it would seem appropriate in the House of Lords for the Secondary Legislation Scrutiny Committee to perform this function. Alternatively, a Joint Committee could be established to carry out this role on a bi-cameral basis.

(5)That where the relevant committee(s) determines that a statutory instrument laid under the ‘Great Repeal Bill’ amends EU law in a manner that determines matters of significant policy interest or principle, it should undergo a strengthened scrutiny procedure. We do not, in this report, attempt to define exactly how this strengthened scrutiny procedure should operate, or whether one of the existing statutory models should be adopted. We recognise that existing models for enhanced scrutiny can prove resource intensive and time-consuming63—in our view, the only essential element of whatever strengthened procedure is selected is that it should provide an opportunity for a statutory instrument to be revised in the light of parliamentary debate.

External engagement

103.The parliamentary committee(s) referred to above will most likely face a significant challenge in determining whether an instrument determines matters of significant policy interest or principle, given the sheer volume and complexity of the secondary legislation expected to be laid under the ‘Great Repeal Bill’. The Government’s recommendation as to an appropriate level of scrutiny will no doubt help this process. However, given the range of areas covered by the body of EU law, and the technical nature of some of that law, it will be important for the committee(s) to have, and use, the ability to draw upon the expertise of stakeholders and the wider public to ensure that the Government is held to account for the choices it makes during this process. Parliament will benefit from assistance not just in assessing the impact of instruments laid under the ‘Great Repeal Bill’, but in having its attention drawn to instruments which require detailed parliamentary scrutiny. The Secondary Legislation Scrutiny Committee told us that “The public may also wish to know what secondary legislation is before the House at any given date so that they can interact with Parliamentarians where they have concerns. Effective, accessible and transparent information resources will therefore be essential.”64

104.Dr Ruth Fox was among those who suggested that Parliament could seek external support and technical assistance in dealing with secondary legislation laid under the Bill:

“There is a good case, depending on how this goes, for Parliament to think about whether it wants a mechanism or mechanisms for providing it with expert advice and capacity to do this work, or at least to support it in doing some of that work, perhaps modelled on the way the NAO supports the Public Accounts Committee, looking possibly at the Law Commission and what its role will be.”65

105.Given the volume of secondary legislation expected to be required to implement the conversion of EU law to UK law, effective use of external expertise and public consultation may well prove an essential tool for committees tasked with scrutinising secondary legislation laid under the ‘Great Repeal Bill’.


106.In addition to external expertise, Parliament will need to consider the resourcing of committees scrutinising this secondary legislation. The Secondary Legislation Scrutiny Committee told us that “The Lords has a well-established scrutiny process but more resources may need to be committed to it if the current, high standard of scrutiny is to be maintained.”66

107.The workload of the Joint Committee on Statutory Instruments meanwhile will dramatically increase, both because it will be required to scrutinise a far greater volume of instruments and because of the expected size and complexity of some of those instruments. Additional legal support will be required for it to meet this challenge.

108.Parliament’s committees and members will be tested by the challenge of giving the expected volume of secondary legislation laid under the ‘Great Repeal Bill’ the level of scrutiny it deserves. While we do not, in this report, make any specific recommendations as to how the question of resources should be addressed, we note that scrutiny committees will need the capacity, expertise and legal support to cope with the increased volume and complexity of secondary legislation. We look to the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, both of which have extensive experience in the scrutiny of secondary legislation, to advise the Liaison Committee as to what will be required to deal with the secondary legislation flowing from the ‘Great Repeal Bill’ and other Brexit-related legislation. Given that there can be a long lead-in time for recruiting and training new staff, thought will need to be given at an early stage to ensuring that these additional resources are in place and up to speed by the time the ‘Great Repeal Bill’ has completed its passage through Parliament.

EU law and the Devolved Institutions

Amending EU law within devolved competence

109.Professor Alan Page, in his paper The implications of EU withdrawal for the devolution settlement, prepared for the Scottish Parliament’s Culture, Tourism, Europe and External Relations Committee, concludes that “most existing EU competences are reserved to the UK Parliament … the policy responsibilities that would fall to the Scottish Parliament are correspondingly few, the principal ones being in respect of justice and home affairs, agriculture, fisheries and the environment”.67

110.In March 2016, the Scottish Parliament’s European and External Affairs Committee commented that:

“In the event of the UK leaving the EU, and the repeal of the European Communities Act 1972, the Committee notes that the Scottish Parliament’s legislative competence, and the Scottish Government’s executive and policy competence, will be extended as they will be able to legislate in fields where the European Union had previously had competence.”68

111.Our witnesses noted that this would give the devolved institutions in Northern Ireland, Scotland and Wales the ability to maintain existing EU law in areas of devolved competence, if they wished. Using the example of Scotland, Professor Bell told us that:

“if a matter, for example, remains within the devolved competence of Scotland in a post-Brexit world and Scotland chooses to modify its laws in the devolved area so as to make them accord with what was the pre-existing EU law in that area, short of changing the Scotland Act and putting constraints on what Scotland can do, pursuant to its devolved competence, I cannot see any legal or constitutional constraint on Scotland taking that course.”69

112.With the repeal of the ECA, the duty upon the devolved institutions not to act incompatibly with European Union law will, in effect, be redundant. Therefore, subject to any provision made expressly by the ‘Great Repeal Bill’ or any other UK primary legislation, the devolved legislatures will be free to legislate in those areas of devolved competence which had previously also fallen within the jurisdiction of the European Union and which had been subject to the primacy of EU law. It is in this way that devolved legislatures will be free, as Professor Craig notes, to pursue their own legislative agendas—including by choosing to remain aligned with EU law—in areas in which EU law previously demanded uniformity. However, the situation will be greatly complicated by the fact that many areas of EU law, both that which is directly effective and that which has been transposed, falls across the boundaries of devolved and reserved competences. Indeed, these areas of law will only increase as the areas of overlap between devolved and reserved competence increase with the implementation of the Scotland Act 2016—and the same is true in respect of areas currently, or soon to be, within the competence of the National Assembly for Wales.

113.It may prove difficult to agree on where that overlap lies. As Professor Bell told us, “there will be significant issues about which departments and which parts of the devolved settlement are involved in these things. If you make an agreement for free movement of persons from some countries, say, that has implications for the health service, which happens to be run by the various devolved assemblies.”70

114.The UK’s exit from the EU will provide the devolved legislatures with the freedom to legislate in devolved areas that are currently circumscribed by EU law. This will mean that the UK Government and the devolved administrations will need to manage new interfaces—and potentially overlapping responsibilities—between reserved matters and devolved competence in areas where the writ of EU law no longer runs. The UK Government and devolved administrations will need to agree, before Brexit, how those new interfaces will be managed.

The Sewel Convention in the context of the ‘Great Repeal Bill’

115.Paragraphs 109–114 are primarily concerned with the situation following the UK’s exit from the EU. Of more immediate concern is how the UK Government intend to prepare for the necessary amendment of domesticated EU law in the run-up to Brexit upon which, following Brexit, the devolved legislatures will be free to legislate.

116.The power, in anticipation of Brexit, to amend the body of EU law that will, following Brexit, be brought across by the ‘Great Repeal Bill’ (or indeed other primary legislation) will only exist as granted by the Bill. As noted above, once Brexit takes effect, the devolved institutions will be able to amend domesticated EU law to the extent that it pertains to matters that are within devolved competence. However, it is not clear that, under the devolution settlements, the devolved institutions will have the competence to pass legislation making anticipatory amendments to the body of EU law that will be domesticated by the ‘Great Repeal Bill’ but that has yet to come into effect as UK law.

117.It may be, of course, that all anticipatory provisions, in respect of both reserved and devolved matters, are made by Parliament through the ‘Great Repeal Bill’ As Professor Alan Page notes “This would then open up the possibility of relying on UK subordinate legislation in disentangling UK law from EU law, which in turn raises the question of Scottish parliamentary control over such legislation.”71

118.It is generally accepted that the Sewel convention does not apply in relation to delegated legislation. Therefore, as Professor Page goes on to note:

“Were [EU] obligations to be transposed by UK Act of Parliament the Scottish Parliament’s consent would be required, but if they are transposed by subordinate legislation its consent is not required. The situation could thus arise in which the UK legislated extensively in areas devolved to Scotland without seeking the consent of the Scottish Parliament as there would be no requirement of its consent in relation to subordinate legislation altering the effects of EU law in the devolved areas.”72

119.It may well be, therefore, that if the UK Government alone is responsible for amending the body of EU law in preparation for its transposition into UK law, it would put the accepted limitation that the Sewel convention does not apply to secondary legislation under considerable strain. This concern might be mitigated by the fact that, following the UK’s exit from the EU and once the body of EU law has been incorporated into UK law, the devolved institutions will be free to legislate within their areas of devolved competence and change whatever ‘snapshot’ of EU law is in force following Brexit. It is likely, however, that the some form of consultation or consent would be considered appropriate.

120.A number of solutions were proposed in evidence to this Committee. Professor Bell argued that “You need to have a way of incorporating the devolved assemblies in processes of scrutiny to make sure that their prerogatives and budgets are properly protected by what is being agreed.”73 The Law Society of Scotland suggested that where circumstances require the UK Government to make subordinate legislation to deal with EU legal issues that fall with the competence of the devolved institutions, “[a]t the least discussions should take place at the Joint Ministerial Council and agreement reached on the terms of such UK delegated legislation. Following on such a Ministerial agreement this legislation should be laid in each of the devolved legislatures for information only.”74 Dr Richard Lang proposed a parliamentary solution by suggesting that the JSCI appoint sub-committees to consider any potential ramifications of delegated legislation made under the ‘Great Repeal Bill’ for the devolved nations.75

121.The UK Government should make clear whether the ‘Great Repeal Bill’ will provide for the UK Government to amend the whole body of EU law in preparation for the UK’s exit from the EU, following which the devolved institutions will take responsibility for those matters that fall within devolved competence, or whether they intend that the ‘Great Repeal Bill’ will leave to ministers in the devolved administrations the ability to prepare amendments to those elements of EU law that will, following Brexit, fall within their competence.

122.If the former, then the devolved institutions will need to be appropriately consulted on the amendments to EU law in areas that fall within their jurisdiction. If the latter, it is essential that the devolved institutions work closely with the UK Government to ensure that EU law does not ‘fall between the cracks’ of their respective jurisdictions and that decisions on the repeal or adoption of domesticated EU law are taken in a way that has regard to the coherence of the Union.

35 House of Commons Library Briefing Paper, Legislating for Brexit: directly applicable EU law,
CBP 7863, 12 January 2017

36 Except in the very small number of cases where the parent act specifically provides for such amendment, e.g. Census Act 1920 section 1(2), Civil Contingencies Act 2004 section 27(3).

37 For example, commencement orders.

38 See Constitution Committee, Delegated Legislation and Parliament: A response to the Strathclyde Review (9th Report, Session 2015–16, HL Paper 116); Delegated Powers and Regulatory Reform Committee, Special Report: Response to the Strathclyde Review (25th Report, Session 2015–16, HL Paper 119); Secondary Legislation Scrutiny Committee, Response to the Strathclyde Review: Effective parliamentary scrutiny of secondary legislation (32nd Report, Session 2015–16, HL Paper 128); Public Administration and Constitutional Affairs Committee, The Strathclyde Review: Statutory Instruments and the power of the House of Lords (Eighth Report, Session 2015–16, HC 752)

40 Public Administration and Constitutional Affairs Committee, The Strathclyde Review: Statutory Instruments and the power of the House of Lords, paras 12 and 50

42 House of Commons Procedure Committee, ‘Delegated powers in the ‘Great Repeal Bill’ inquiry launched’, 2 February 2017:

44 Written evidence from the Secondary Legislation Scrutiny Committee (LEG0050)

49 Written evidence from British Bankers’ Association (LEG0047)

50 Written evidence from WWF-UK (LEG0045)

51 Written evidence from The Bar Council (LEG0042)

52 Written evidence from the Secondary Legislation Scrutiny Committee (LEG0050)

53 See, for example, 134 (Professor Young)

57 To be found in the following Acts: Northern Ireland Act 1998 section 85; Human Rights Act 1998 Schedule 2; Local Government Act 1999 section 17; Local Government Act 2000 section 9; Local Government Act 2003 section 98; Fire and Rescue Services Act 2004 section 5E (as inserted by the Localism Act 2011); Legislative and Regulatory Reform Act 2006 sections 12 to 19; Local Transport Act 2008 section 102; Public Bodies Act 2011 section 11; Localism Act 2011 section 7; and, Localism Act 2011 section 19

59 Legislative and Regulatory Reform Act 2006, sections 17(3) and 18(5); section 16(4) (the equivalent for draft negatives) is also relevant.

60 Fire and Rescue Services Act 2004 sections 5 and 15, and section 5C(1) and (2) (inserted by section 9 of the Localism Act 2011).

62 The JCSI consider the “technical qualities” of all delegated legislation laid before Parliament and considers each against a number of technical criteria, including whether “there appears to be doubt about whether there is power to make it or that it appears to make an unusual or unexpected use of the power to make” and whether “its drafting appears to be defective”.

63 See, for example, Department for Business, Innovation & Skills, Memorandum to the Business, Innovation and Skills Committee: Post Legislative assessment of the Legislative and Regulatory Reform Act 2006,
Cm 8948, November 2014:–44042-Cm-8948-memorandum-to-the-business-innovation-and-skills-committee-post-legislative-assessment-of-the-legislative-and-regulatory-reform-act-2006-accessible.pdf [accessed 1 March 2017]

64 Written evidence from Secondary Legislation Scrutiny Committee (LEG0050)

66 Written evidence from Secondary Legislation Scrutiny Committee (LEG0050)

67 Professor Alan Page, The implications of EU withdrawal for the devolution settlement, paras 5-6: [accessed 1 March 2017]

68 Scottish Parliament European and External Relations Committee, EU reform and the EU referendum: implications for Scotland (2nd Report, SP Paper 978, March 2016), p. 7: [accessed 1 March 2017]

69 Q 137. See also Professor Young’s response to the same question.

71 Professor Alan Page, The implications of EU withdrawal for the devolution settlement, para 13

72 Professor Alan Page, The implications of EU withdrawal for the devolution settlement, para 13

74 Written evidence from The Law Society of Scotland (LEG0046)

75 Written evidence from Dr Richard Lang (LEG0048)

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