Chapter 9: Scrutiny of delegated powers
Introduction
207.Effective parliamentary scrutiny of the extensive regulation-making powers in the Bill is essential. Parliament must ensure that the information provided alongside the regulations allows for proper scrutiny and that the procedures the regulations will be subject to are appropriate. A number of our witnesses set out arguments along these lines.143
Explanatory memoranda
208.In our report, The ‘Great Repeal Bill’ and delegated powers, we recommended that ministers should “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.”144 We further recommended 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.”145
209.The Government committed to meet part of the latter recommendation, which we welcomed in our interim report.146 The Bill requires that all explanatory memoranda accompanying statutory instruments must:
- 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 (emphasis added).147
210.During committee stage in the House of Commons, the Government amended the Bill to require that explanatory memoranda also “contain information regarding the impact of the instrument on equalities legislation.”148
211.We welcome the requirements in the Bill for publishing explanatory memoranda for instruments resulting from the Bill. If our earlier recommendation is accepted (para 167), we would expect the memoranda to include a statement from the minister setting out the ‘good reasons’ for the regulations and explaining that this constitutes a ‘reasonable course of action’. We further recommend that explanatory memoranda should include a certification from the minister that the regulation does no more than make technical changes to retained EU law in order for it to work post-exit, and that no policy decisions are being made. Such certification would assist Parliament to identify which instruments need greater scrutiny.
Parliamentary procedures
212.Clause 16 gives effect to schedule 7, which contains scrutiny procedures for each delegated power in the Bill. Schedule 7 sets out three scrutiny procedures: negative, draft affirmative and made affirmative.
213.Witnesses expressed concern about the parliamentary procedures for scrutinising regulations flowing from the Bill. Unlock Democracy said “if parliament proceeds ahead using the existing procedures for scrutinising delegated legislation, it will simply not be able to do its scrutiny job properly, and will certainly be open to the charge of abdicating very serious oversight responsibilities.”149 It argued that “it is completely untenable, from both a practical and democratic perspective, to use existing procedures, given the wide scope of the powers and sheer number of statutory instruments arising from the bill that will need scrutiny in what is likely to be a short time frame. The bill must be taken as an opportunity for the serious reform that is needed.”150
Negative procedure
214.Most instruments will be subject to the negative procedure, whereby they are approved automatically after a set period of time, without parliamentary debate, unless either House objects or they are withdrawn by the Government. The Government justified the use of the negative procedure: “We anticipate a large number of fairly straightforward changes, including to primary legislation, will be needed in consequence of this Bill.”151
215.We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance. The Government has not offered sufficient justification for the widespread application of the negative procedure in this context, given the constitutional implications for the separation of powers.
Affirmative procedure
216.Instruments subject to the affirmative procedure require the formal approval of both Houses of Parliament before they become law, but cannot be amended. Part 1 of schedule 7 sets out scrutiny procedures for the regulation-making powers contained in clause 7 of the Bill. Paragraph 1(1) and (2) determine which measures require affirmative procedure. They are:
- Establishing a new public authority in the United Kingdom
- Transferring functions to a newly created public authority
- Transferring EU legislative functions to a public authority in the UK
- The setting of new fees or charges by a public authority
- Creating or widening the scope of a criminal offence (clauses 7–9 read with clause 14 expressly preclude the creation by regulations of a criminal offence which carries a possible prison sentence of more than two years)
- Creating or amending a power to legislate.
217.Even some of the areas which require affirmative procedure are concerning since they encompass matters for which primary legislation would normally be required—for example, for establishing a public authority. Client Earth argued:
“While it may be necessary to temporarily assign existing functions to existing domestic bodies, or to seek continued relationships with certain EU bodies where possible, or to establish new institutions via powers in the Withdrawal Bill, these measures should be temporary and subject to proper review in due course … Any new domestic governance institutions established in the wake of Brexit must have adequate resources, full independence, relevant expertise and sufficient legal powers. Such bodies should be established by Parliament (not Government).”152
218.Professor Young argued that the limited instances in the Bill where the draft affirmative resolution procedure has to be used do not cover “all of the situations where delegated legislation may involve the exercise of a policy choice.”153
219.We are concerned that, despite the broad powers in clauses 7–9 to make changes to retained EU law, only a narrow range of matters are subject to affirmative procedure. The narrowly-circumscribed set of circumstances for which affirmative procedure is required is constitutionally unacceptable. If the regulation-making process is deemed acceptable by Parliament for the use of these powers, the Bill should provide for the application of the affirmative procedure in relation to any measure which involves the making of policy.
Made affirmative procedure
220.The made affirmative procedure, set out in paragraph 3 of schedule 7, is designed for urgent cases. It allows an instrument which would otherwise be subject to affirmative procedure to be made “without a draft of the instrument being laid before, and approved by a resolution of, each House of Parliament if it contains a declaration that the Minister of the Crown concerned is of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved.”154 The procedure allows instruments to be made and come into force before they are debated by Parliament. The Government justifies this procedure as there may be insufficient time available to make necessary changes before exit day using the draft affirmative procedure, and because of the “exceptional circumstances” of withdrawing from the EU.155 The only safeguard is that regulations which take effect through made affirmative procedure cannot remain in force unless approved by both Houses within one month.156
221.Professor Young argued, “there is a need for detailed scrutiny over the decision of the Minister of the Crown that a matter is so urgent that it requires to be enacted without Parliamentary approval, particularly as measures taken under that measure will remain lawful even if the measure itself is not approved within a month and new regulations can be made, presumably, if still urgent, through the same procedure.”157 The Public Law Project stated that “The potency of the powers that could be exercised in ‘urgent’ cases is hard to overstate. Ministers could deprive people of their liberty and Parliament would not be able to do anything about it … Particularly worryingly, acts done while the provisions were in force would retain the force of law, even if Parliament later struck down the law.”158
222.In our report on fast-track legislation, we accepted that in limited circumstances a fast-track affirmative procedure may be necessary.159 But we qualified this with a reminder “of the importance of executive self-restraint”.160 We reiterate the conclusion of our interim report, that “given the significance of the issues at stake, and the breadth of the powers involved, we are not convinced that urgent procedures are acceptable.”161 The made affirmative procedure should be far more tightly drawn and controlled in the Bill.
Additional committee scrutiny
223.We argued in our report, The ‘Great Repeal Bill’ and delegated powers, that the Government should “make a recommendation for each statutory instrument as to the appropriate level of parliamentary scrutiny that it should undergo.”162 A parliamentary committee or committees should consider that recommendation and be able to recommend a strengthened scrutiny procedure as appropriate. A statutory instrument amending “EU law in a manner that determines matters of significant policy interest or principle should undergo a strengthened scrutiny procedure.”163 However, as we noted in our interim report, “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.”164
224.A number of witnesses advocated a strengthened scrutiny procedure or additional committee scrutiny.165 Sir Keir Starmer QC MP told us that he was in favour of “an additional category in the triaging”166 of secondary legislation and noted that “having that triaging, that greater scrutiny and the ability to do something about the secondary legislation will be really important, given the wider range of policy issues covered and the great volume that is going to come through in pretty short order.”167
225.We concluded in our interim report that the Bill failed to adopt our proposal for “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.”168 However, during committee stage on the Bill in the House of Commons, the Government announced its support for amendments proposed by Charles Walker MP, Chair of the Commons Procedure Committee, to create a sifting committee to examine the stautory instruments (SIs) flowing from the Bill and to report on the procedure to which they should be subject.169
226.We welcome the establishment of a sifting committee in the Commons to consider whether negative instruments resulting from this Bill are subject to the appropriate procedure. The House of Lords will need to adjust its procedures to address this task and may wish to consider whether a joint committee should be established with this function.
227.The Bill does not give the sifting committee(s) power to strengthen the parliamentary control of an instrument, only to recommend that it be strengthened. We recommend that committee(s) should be empowered to decide the appropriate scrutiny procedure for an instrument, subject to the view of the House, in order to provide the necessary degree of parliamentary oversight.
228.In our view, the Bill as drafted proposes scrutiny measures that are inadequate to meet the unique challenge of considering the secondary legislation that the Government will introduce once the Bill is passed.
Role of the House of Lords
229.The Government expects around 800–1,000 statutory instruments to flow from the Bill to deliver Brexit. It is essential that the House of Lords has capacity to scrutinise these effectively, especially in the limited time available.
230.Baroness Evans of Bowes Park, the Leader of the House of Lords, told us:
“it is worth noting that it is quite common to have about 1,000 SIs in a one-year session, so one could say that in a two-year session 2,000 is not extraordinary. But I accept that we are in a different situation, which is why we are taking our role seriously. As a Government we are looking at the part that we play to make sure that SIs come to the House in a much better state than perhaps they have done in the past. That is why the Parliamentary Business and Legislation Committee, of which I am a member, is now overseeing secondary as well as primary legislation.”170
231.She continued: “We have the head of the Policy Profession, First Parliamentary Counsel and the head of the Government Legal Department overseeing a panel of civil servants who are reviewing the quality of Explanatory Memoranda. In every department we also now have a nominated Minister who is in charge of secondary legislation in their department and a senior responsible civil servant working with them.”171
232.In terms of the House of Lords scrutiny, Baroness Evans said:
“We have a highly regarded Committee structure. I think that there is a unique role and voice for the Lords and we will be looking to build on what we have and to ensure that we have a comparable process to that in the Commons for these particular SIs under the Bill … I am minded to look at building on the work of the Secondary Legislation Scrutiny Committee, enhancing its resources so that, hopefully, it can play a comparable role in dealing with the SIs.”172
The Leader of the House indicated that discussions would take place with the relevant committees and the usual channels on how to proceed.
233.We look forward to the Leader of the House bringing forward proposals for scrutiny in the House of Lords early in the passage of the Bill. Enhanced scrutiny will be essential for the statutory instruments resulting from this Bill, once it has passed, and from other Brexit-related Bills. We welcome the commitment from the Leader of the House to enhance the resources available to the House for this scrutiny.
143 See, for example, written evidence from Association of British Insurers (EUW0022) and Dr Antonios Kouroutakis, IE Law School (EUW0024).
144 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 102(1)
145 Ibid., para 102(2)
146 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), paragraph 52
148 HC Deb, 12 December 2017, col 282
150 Ibid.
154 Schedule 7, paragraph 3(2)
156 Schedule 7, paragraph 3(4)
159 Constitution Committee, Fast-track Legislation: Constitutional Implications and Safeguards (15th Report, Session 2008–09, HL Paper 116), para 139
160 Ibid.
161 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), paragraph 60
162 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 102(3)
163 Ibid.
164 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 54
165 See, for example, written evidence from the Association of British Insurers (EUW0022), Professor Alison Young, University of Oxford (EUW0003) and the Environmental Policy Forum (EUW0016).
168 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 10
169 See paragraph 13 of schedule 7. The Government has tabled draft Commons standing orders to establish the sifting committee in the House of Commons.
172 Ibid.