Chapter 3: Delegated powers
Granting delegated powers
35.In our earlier report, we said that the ‘Great Repeal Bill’ was likely to “propose that Parliament delegate to the Government significant powers to amend and repeal (primary) and revoke (secondary) legislation to enable it to carry out the significant task of preparing the ground for the conversion of the body of EU law into UK law within the timeframe set out for the UK’s exit from the EU.”22 However, we noted that providing powers to make these changes through delegated legislation would “involve a massive transfer of legislative competence from Parliament to Government” which raised “constitutional concerns of a fundamental nature” about the balance of power between the legislature and executive.23
36.We recognised that there was an important distinction between the “mechanical act of converting EU law into UK law”—for which the European Union (Withdrawal) Bill is intended—and the process of implementing new policies “to make substantive changes to certain areas currently covered by EU law” which should take place separately in primary legislation.24
Delegated powers in the Bill
37.In our report, we were mindful of “the degree of uncertainty as to what exactly the process of converting EU law into UK law will involve” and we recognised that the process “will almost certainly necessitate the granting of relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit where necessary.”25 The Government quoted this conclusion in the Explanatory Notes on the Bill and said that “the approach of taking delegated powers to make the necessary changes by secondary legislation was agreed by the Government as being the only appropriate solution.”26
38.However, we did state—in a passage of our report that was not quoted by the Government, and the implications of which were ignored—that “Parliament should ensure that the delegated powers granted under the ‘Great Repeal Bill’ are as limited as possible.”27 The delegated powers proposed under the European Union (Withdrawal) Bill are, as drafted, exceptionally wide. For example, clause 7(1) gives Ministers extensive powers to make such regulations they consider “appropriate” to deal with “any failure of retained EU law to operate effectively or any other deficiency in retained EU law” arising from withdrawal. This application of a subjective test to a broad term like “deficiency” makes the reach of the provision potentially open-ended. Indeed, the Explanatory Notes accompanying the Bill sets out that “the sorts of deficiencies that the power might need to deal with”28 could include the rights under EU treaties that are no longer appropriate. Although clause 7(2) gives some examples of “deficiencies”, the list is not exhaustive. As a result, Ministers are likely to have considerable latitude when it comes to determining what counts as a “deficiency”. Although the courts, using their judicial review powers, may rule on whether a Minister has taken an overbroad view in exercising the power, their task will be made extremely difficult by the breadth with which the power is drafted and, more broadly, the overlapping nature of delegated powers throughout the Bill. Professor Alison Young concluded that these powers were “broad and vaguely worded” and that this “could give rise to potential over-breadth, in addition to potential future litigation over the specific confines of the powers granted to the executive.”29
39.In our earlier report, we said that it was important to distinguish between powers required to make the necessary amendments “to the existing body of EU law as a consequence of the UK’s exit from the EU, and substantive, more discretionary changes that the Government may seek to make to implement new policies in areas that previously lay within the EU’s competence.”30 We concluded that delegated powers “granted for the purpose of converting the body of EU law into UK law” should not be used to “implement new policies.”31 The Explanatory Notes state that the Bill “does not aim to make major changes to policy or establish new frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one.”32 The Secretary of State for Exiting the European Union, Rt Hon David Davis MP, has said that the powers in the Bill will not make substantive changes, but rather “technical changes to make the law work.”33 The Government may intend to limit their use of the powers in this way, but the Bill, as drafted, does not impose such a constraint. As Professor Paul Craig noted, “there will be many instances where a change is required in order that the measure makes sense post-exit, but where the necessary change may also entail policy choices, and not mere technical adaptation.”34 As such, the powers in the Bill as drafted provide considerable scope for significant policy changes to be made. The Bill therefore fails to respect the distinction for which we called in our earlier report between technical and policy changes. We are concerned that clauses 7 to 9, as drafted, leave open the possibility that the powers they contain could be used to make changes in significant policy areas. The Government should place on the face of the Bill restrictions on the powers to limit their use to purely technical changes; given the broad scope of the powers, ministerial assurances are not sufficient. This would also potentially assist relations with the devolved administrations, to which we turn later in this report.
40.We proposed that “a general restriction on the use of delegated powers” could be achieved using “a general provision … placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and so far as necessary to implement the result of the UK’s negotiations with the EU.”35 We repeat our recommendation that the Bill should “clearly set out a list of certain actions that cannot be undertaken by the delegated powers … as another means of mitigating concerns that may arise over this transfer of legislative competence.”36
41.In the Delegated Powers Memorandum, the Government, referring to our initial report, said that the Committee “noted the complexities of the issues which the Government would need to address and concluded that in the circumstances it would be unrealistic to limit tightly the power needed to adapt retained EU law.”37 While we said that it was “unrealistic to assume that Parliament will be able tightly to limit the delegated powers granted under the Bill—because it will not be clear what, exactly, they will be required to do,”38 we also made clear that such powers should not be used to make substantive policy changes. As such, we “considered various ways in which the Government could be granted a greater degree of latitude in the delegated powers granted under the ‘Great Repeal Bill’ while simultaneously restricting their exercise to the task of converting relevant aspects of EU law into UK law.”39
42.The Bill includes some restrictions on the delegated powers, such as the stipulations in clause 7(6) that the powers cannot be used to impose or increase taxation; make retrospective provision; create certain types of criminal offence; implement the withdrawal agreement; amend, repeal or revoke the Human Rights Act 1998 or subordinate legislation made under it; or amend or repeal the Northern Ireland Act 1998. Similar restrictions exist in clause 8 which grants ministers powers to comply with international obligations and clause 9 to implement the withdrawal agreement.40 However, these restrictions are limited in their effect, given that the ministerial powers allow regulations to “make any provision that could be made by an Act of Parliament.”41
43.In addition to the principal delegated powers in clauses 7 to 9, we have concerns about delegated powers elsewhere in the Bill. For instance, an extremely wide power appears to be contemplated by clause 17 which provides that a minister “may by regulations make such provision as the Minister considers appropriate in consequence of this Act.”42 The Bill also stipulates that any power conferred by it to make regulations “may be exercised so as to modify retained EU law.”43
44.We are concerned about the delegated powers the Government is seeking in the European Union (Withdrawal) Bill. The number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw. They would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence. We stress the need for an appropriate balance between the urgency required to ensure legal continuity and stability, and meaningful parliamentary scrutiny and control of the executive.
45.In our forthcoming inquiry, we will examine these powers in greater detail. We look forward to the conclusions of the Delegated Powers and Regulatory Reform Committee on the Bill.
Henry VIII powers
46.In our earlier report we explored the difference between normal delegated powers (that cannot be used to amend primary legislation) and Henry VIII powers (which can be used to amend primary legislation). We recognised that in the unprecedented situation brought about by departure from the EU, “the usual distinction between Henry VIII powers … and other delegated powers … is of less import.”44 Our reasoning was not that Henry VIII powers were less concerning in this instance; it was that while powers to amend much retained EU law need not be Henry VIII powers (because most retained EU law will not be set out in Acts of Parliament), a good deal of retained EU law contains measures of the type that might be contained in Acts of Parliament had its legislative root been domestic rather than European. We therefore concluded:
“Parliament must not assume that, simply because a particular delegated power would only affect a piece of secondary legislation or an element of what is currently directly effective EU law, the delegation of power requires less scrutiny than a delegation of power that happens to affect an element of EU law that is currently embodied in primary legislation (and would thus have to take the form of a Henry VIII power). In short, the distinction between Henry VIII and other delegated powers is not in this exceptional context a reliable guide to the constitutional significance of such powers, and should not be taken by Parliament to be such.”45
47.The Delegated Powers Memorandum accompanying the European Union (Withdrawal) Bill, quotes the latter part of our conclusion that “the distinction between Henry VIII and other delegated powers is not in this exceptional context a reliable guide to the constitutional significance of such powers, and should not be taken by Parliament to be such” in justifying the broad powers to amend primary legislation.46 However, we made no suggestion that the limited need for Henry VIII powers to amend retained EU law should be taken to signify that the constitutional concerns in play are limited in scope or seriousness. Rather, our point was that in these highly unusual circumstances, the fact that a Henry VIII power may not be needed should not be taken to signify that important constitutional concerns are necessarily absent.
48.The Memorandum states that “a large number of fairly straightforward changes will be needed to primary legislation in readiness for exit day.”47 To this end the Bill contains Henry VIII clauses of a very broad nature. These are set out not only in the main clauses (7 to 9) which give regulation-making powers, but throughout the Bill, including clause 17. It is also the case that some of these powers can be exercised using only the negative, rather than affirmative procedure. We accept that the Government will require some Henry VIII powers in order to amend primary legislation to facilitate the UK’s withdrawal from the European Union, but they should not be granted lightly, and they must come with commensurate safeguards and levels of scrutiny. We do not believe that the Government has engaged with the need for such safeguards and we will pursue this issue in our forthcoming inquiry.
Sunset clauses
49.In our earlier report, we explored the use of sunset clauses as “a viable means of controlling the powers granted to the Government.” We concluded that “if the Government seek discretion to domesticate and amend significant elements of the body of EU law by secondary legislation, then it is essential Parliament consider how that discretion might be limited over time” and as such, the extensive powers ministers have under the Bill should be subject to sunset clauses.48
50.We therefore welcome the inclusion of sunset clauses in the Bill. These set a two-year time limit after “exit day” on the powers to deal with deficiencies in retained EU law (clause 7), with any breach of international obligations (clause 8) and to implement the withdrawal agreement (clause 9). We note that “exit day” will be defined by the Government and will not necessarily have to be 31 March 2019. In our forthcoming inquiry we will consider whether the length of the sunset clause for these powers is appropriate and explore the potential consequences of ministerial discretion in determining what counts as “exit day”. Our inquiry will also consider how the inclusion of sunset clauses could influence the work between the UK Government and devolved administrations to agree common frameworks.
Scrutiny of delegated legislation
51.In our earlier report, we noted the “significant challenge” Parliament will face scrutinising the secondary legislation that will follow this Bill, both in terms of its volume and its complexity. 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”49 we made a number of recommendations. These included a proposal that ministers should “sign a declaration in the Explanatory Notes 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.”50 We also recommended that “the Explanatory Notes 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.”51
52.In the Delegated Powers Memorandum accompanying the Bill, the Government said that it has built “on a suggestion of the House of Lords Constitution Committee” and “decided that all explanatory memoranda accompanying statutory instruments made by Ministers of the Crown under powers in the Bill must, in addition to the usual requirements for the contents of an explanatory memorandum, also: explain what any relevant EU law did before exit day, explain what is being changed or done and why, and include a statement that the minister considers that the instrument does no more than what is appropriate.”52 We welcome the Government’s decision to act on our recommendation in part by requiring statutory instruments under these powers to be accompanied by ministerial statements explaining them; however, our recommendation was that declarations in the Explanatory Memorandum to each statutory instrument should apply a necessity test. The commitment by the Government to do “no more than what is appropriate” is weaker than our recommendation. Therefore we would like to see ministerial statements explain why the instruments are necessary.
53.In our earlier report we discussed the possibility of strengthened scrutiny procedures. We addressed various options set out by the Delegated Powers and Regulatory Reform Committee (DPRRC) in its special report: Strengthened Statutory Procedures for the Scrutiny of Delegated Powers.53 We concluded that the Government should “make a recommendation for each statutory instrument as to the appropriate level of parliamentary scrutiny that it should undergo”54 and that a parliamentary committee(s) should consider that recommendation and nominate a strengthened scrutiny procedure where they deemed it appropriate.55 We suggested that a statutory instrument amending “EU law in a manner that determines matters of significant policy interest or principle should undergo a strengthened scrutiny procedure.”56
54.We concluded that an “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.”57 This is particularly important given that statutory instruments cannot be amended. Given the breadth of the powers in the Bill, and the possibility that these will be used to make substantive policy changes, we are concerned that no consideration has been given to the need for enhanced parliamentary procedures.
55.The European Union (Withdrawal) Bill and the associated Delegated Powers Memorandum set out the scrutiny procedures to which exercises of each of the delegated powers will be subject. Most instruments will be subject to the negative procedure; there are only very limited circumstances where the affirmative procedure will apply, such as the establishment of a public authority, transferring functions to a public authority, and creating/widening the scope of a criminal offence. No mechanism has been proposed that would allow for instruments to have their scrutiny process strengthened or for instruments to be revised. Professor Young described this as “particularly problematic”,58 while Professor John Bell said that the Bill “does not recognise the magnitude of the task and therefore the need to have differently designed procedures to ensure adequate scrutiny.”59
56.We are concerned that, despite the broad powers contained in clauses 7 to 9 to make substantial changes to retained EU law, only a narrow range of matters require the express consent of Parliament through the affirmative procedure. This is not constitutionally acceptable for Henry VIII powers of this significance.
57.We note that the House of Commons Procedure Committee began an inquiry in the last Parliament to examine if any changes were “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.”60 Parliament was dissolved before that inquiry could be completed, but in its legacy report at the end of the Parliament, it concluded that there was a “need to establish procedures for scrutiny of secondary legislation” under the Bill to “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.”61 The Bill does not propose new procedures for the scrutiny of secondary legislation.
58.The Bill would also allow the Government to bypass the standard scrutiny procedures if the minister considers it “urgent.”62 The Delegated Powers Memorandum states that:
“the made affirmative procedure will be available as a contingency should there be insufficient time for the draft affirmative procedure for certain instruments before exit day … The Government believes that the exceptional circumstances of withdrawing from the EU might necessitate the use of the made affirmative procedure.”63
59.The Memorandum quotes our 2009 report, Fast-track Legislation: Constitutional Implications and Safeguards, where we said that “in a very limited number of circumstances there may be grounds for seeking to fast-track parliamentary procedure of draft affirmative instruments … ” The Memorandum omits the remainder of the sentence, which continued “… we take this opportunity to remind the Government of the importance of executive self-restraint.”64
60.We acknowledge that there are likely to be significant time pressures for the Government delivering the secondary legislation required to facilitate legal continuity upon exit. We also acknowledge that regulations made by way of the ‘made affirmative’ procedure are time-limited in their effect. However, given the significance of the issues at stake, and the breadth of the powers involved, we are not convinced that urgent procedures are acceptable. We will examine this issue further in our forthcoming inquiry, but we urge the Government to consider bespoke mechanisms for ensuring some parliamentary scrutiny prior to urgent statutory instruments being made.
61.We are concerned that the procedures for parliamentary involvement and scrutiny of the statutory instruments that will derive from the European Union (Withdrawal) Bill will be insufficient, given their potential significance. The establishment of a public authority or the creation of a criminal offence would normally be effected by primary legislation which would be open to amendment. We await with interest the views of the Delegated Powers and Regulatory Reform Committee on this area, and will consider further whether enhanced scrutiny procedures are required for this Bill in our forthcoming inquiry.
Practicalities of delegated legislation scrutiny
62.Our earlier report noted that the volume of secondary legislation required to convert EU law to UK law would be significant and that Parliament would need to consider how to scrutinise it effectively. We said 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.”65
63.We also said that the “effective use of external expertise and public consultation may well prove an essential tool for committees tasked with scrutinising secondary legislation”66 laid under the Bill. We will give further consideration to these issues in our forthcoming inquiry. In light of the breadth of the powers given by the Bill, the extent of its Henry VIII powers, the absence of any strengthened procedure for scrutinising statutory instruments, and the range of instruments that can be made by negative procedure, effective parliamentary oversight will be especially important.
22 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 45
23 Ibid., para 47
24 Ibid., para 16
25 Ibid., para 46
26 Explanatory Notes to the European Union (Withdrawal) Bill [Bill 5 (2017–19)-EN], para 13
27 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 46
30 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 37
31 Ibid., para 49
33 BBC News, Brexit: The UK’s key repeal bill facing challenges, 13 July 2017: http://www.bbc.co.uk/news/uk-politics-40589510 [accessed: 8 August 2017]
35 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 50
36 Ibid., para 51
38 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 42
39 Ibid., para 44
40 Clause 9 does not include the restriction on implementing the withdrawal agreement.
41 European Union (Withdrawal) Bill, clause 7(4)
43 Ibid., schedule 7, paragraph 13
44 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 39
45 Ibid., para 40
46 European Union (Withdrawal) Bill Delegated Powers Memorandum, para 36 quoting Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 40
48 Ibid., para 73
49 Ibid., para 102
50 Ibid., para 102(1)
51 Ibid., para 102(2)
53 Delegated Powers and Regulatory Reform Committee, Special Report: Strengthened Statutory Procedures for the Scrutiny of Delegated Powers (3rd Report, Session 2012–13, HL Paper 19)
54 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 102(3)
55 Ibid., para 102(4)
56 Ibid., para 102(3)
57 Ibid., para 102(5)
60 House of Commons Procedure Committee, Matters for the Procedure committee in the 2017 Parliament (Seventh Report, Session 2016–17, HC 1091) para 5
61 Ibid., para 13
62 European Union (Withdrawal) Bill, schedule 7 part 1(3) and part 2(11)
64 Constitution Committee, Fast-track Legislation: Constitutional Implications and Safeguards (15th Report, Session 2008–09, HL Paper 116), para 139
65 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 108
66 Ibid., para 105