Sessional report 2016–17
1.The House of Lords Constitution Committee is appointed by the House “to examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution”. Accordingly, we conduct bill scrutiny, carry out in-depth policy inquiries and hold annual evidence sessions with holders of certain public offices closely related to the constitution.
2.The aims of our sessional reports are:
- to summarise for the House and the public the work we have undertaken during the session;
- to assess the effectiveness of that work; and
- to comment on any general matters which we consider important.
3.During the 2016–17 session, we published five legislative scrutiny reports, and corresponded with ministers on a further three bills. We began a large-scale inquiry on the Legislative Process, conducted in four parts: Preparing legislation for Parliament; the passage of legislation through Parliament; the delegation of powers; and after Royal Assent. We took evidence on parts one and three of the inquiry, but due to the calling of the general election, we will publish these reports in the new Parliament.
4.We published three reports in response to Brexit: The invoking of Article 50; European Union (Notification of Withdrawal) Bill; and ‘The Great Repeal Bill’ and delegated powers. We published a report on English Votes for English Laws and we also began a follow-up inquiry to our 2012 report on Judicial Appointments.
5.We held our regular evidence sessions with the Chairman of the House of Lords Appointments Commission, the Parliamentary Secretary (Minister for the Constitution), the Lord Chancellor and Secretary of State for Justice, the Lord Chief Justice of England and Wales, and the President and Deputy President of the Supreme Court.
Brexit
6.Following the referendum of 23 June 2016 and the UK’s decision to leave the European Union, we produced three reports that examined the constitutional implications of Brexit.
The invoking of Article 50
7.We published our report, The invoking of Article 50, in September 2016 when the debate was about when and how to trigger Article 50 of the Treaty on European Union.1 We concluded that Parliament was ultimately responsible for ensuring the Government acted upon the referendum result and undertook the Brexit negotiations in a way that achieved the best possible outcome for the UK as a whole. Our report noted that although the EU referendum was, in legal terms, advisory, it was also accompanied by a clear undertaking by the Government, based on a manifesto commitment, to implement the decision that was reached. We said that it was imperative that Parliament played a central role in the decision to trigger Article 50; and that Parliament should have a key role in scrutinising both the Brexit negotiations and in approving the final deal between the UK and the EU.
8.Subsequent to our report, the Supreme Court held in its judgment on 24 January 2017 in R (Miller) v Secretary of State for Exiting the European Union, that the Government could only trigger Article 50 of the Treaty on European Union and begin the process of the UK leaving the EU if Parliament enacted primary legislation empowering them to do so.2
European Union (Notification of Withdrawal) Bill
9.The European Union (Notification of Withdrawal) Bill was introduced in the House of Commons on 26 January 2017. The Bill was ‘semi fast-tracked’, in that both the House of Commons and the House of Lords were asked to waive the recommended minimum intervals between the stages of the Bill. In the House of Lords, the Bill had its second reading on 20 and 21 February, with committee stage taking place on 27 February and 1 March, followed by report stage and third reading on Tuesday 7 March. The Bill received Royal Assent on 16 March 2017.
10.In our report, we noted that the Bill was fast-tracked to meet the Prime Minister’s political deadline to trigger Article 50 by March 2017.3 We concluded that, while the usual concerns regarding the fast-tracking of legislation were alleviated by the brevity and simplicity of the Bill, it should not be seen as setting “a precedent in relation to future measures of constitutional significance, such as the so-called ‘Great Repeal Bill’ and other Brexit-related legislation.”4
The ‘Great Repeal Bill’ and delegated powers
11.During the process of taking evidence for our inquiry on The Legislative Process, a number of witnesses drew to our attention the possibility that the forthcoming ‘Great Repeal Bill’ might contain exceptionally broad delegated powers, enabling the Government to effectively re-write the law across whole swathes of the statute book. In the light of this, we concluded that it would be appropriate for the Committee to take the unusual step of publishing a report to set out the issues liable to be raised by the ‘Great Repeal Bill’ in their wider constitutional context.
12.In our report, The ‘Great Repeal Bill’ and delegated powers, we proposed measures to safeguard the rights of Parliament as the process of Brexit gets underway.5 We argued that Parliament should make sure the Government does not use delegated powers in the ‘Great Repeal Bill’ as a way of changing the law in areas currently governed by the EU without proper parliamentary scrutiny.
13.We recommended that Parliament should seek to limit the scope of delegated powers contained in the Bill by developing new scrutiny processes to ensure that the Government uses the delegated powers it acquires under the Bill in an appropriate way. We argued that they should only be used so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework and to implement the result of the UK’s negotiations with the EU.
14.We also recommended strengthened scrutiny measures, including a requirement that a Minister sign a declaration in respect of each statutory instrument affirming that it does no more than necessary to translate EU law into UK law. In addition, the Explanatory Memorandum accompanying each instrument should explain what the EU law in question currently does, the effect of any amendment and why such amendment is necessary. This would allow Parliament to conduct more effective scrutiny on this important legislation.
15.The report also considered the devolution-related implications of repatriating EU laws. We recommended that the UK Government should make clear the role it sees for the Scottish, Welsh and Northern Irish Governments in preparing to incorporate EU law in areas that will, following Brexit, fall within their authority.
16.The Government acknowledged some of these points in its white paper, Legislating for the United Kingdom’s withdrawal from the European Union,6 however the substance of its response will be assessed when we come to examine the Bill itself.
1 Constitution Committee, The invoking of Article 50 (4th Report, Session 2016–17, HL Paper 44)
3 Constitution Committee, European Union (Notification of Withdrawal) Bill (8th Report, Session 2016–17, HL Paper 119)
4 Ibid., para 13
5 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123)
6 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/604516/Great_repeal_bill_white_paper_accessible.pdf [accessed 27 June 2017]