Third Report Contents

Introduction

1.On 11 September, the House of Commons gave a second reading to one of the most important Bills in the constitutional history of the United Kingdom. The Bill gives to Ministers a range of powers, unique in peace-time, to override Acts of Parliament by statutory instrument, without in most cases the need for any prior debate in either House of Parliament.

The heart of the Bill

2.The European Union (Withdrawal) Bill essentially does three things:

Our remit

3.This Committee, which has no counterpart in the House of Commons, examines Bills to see:

(a)whether they grant to Ministers (and others) inappropriate powers to make law; and

(b)whether the powers are exercisable without appropriate parliamentary scrutiny.

4.To assist us in our consideration of the European Union (Withdrawal) Bill, the Department for Exiting the European Union has provided a delegated powers memorandum.2

5.Ministers already make considerably more law than Parliament. From 2014 to 2016, Parliament passed 92 public general Acts. During the same period, Ministers made 6,787 laws by statutory instrument under powers delegated to them by Parliament. This Bill is expected to generate another 800 to 1,000 statutory instruments in the near future, making it a Bill of the first importance in terms of law-making powers being granted to Ministers. We make no apology for the fact that this report is longer than usual. The importance of the Bill requires it.

Earlier involvement than usual

6.Normally we report on a Bill in sufficient time to allow Members of the House of Lords to consider it before the Bill’s committee stage in the House of Lords. This Bill is of exceptional constitutional significance. Central to the Bill is the balance of power between Parliament and Government, including the propriety of giving Ministers such unprecedented powers to override Acts of Parliament subject, in the great majority of cases, to no scrutiny whatsoever on the floor of either House. Accordingly we have written this report in sufficient time for Members of the House of Commons to consider it at committee stage in their House. In due course, we will also report on the Bill in the form in which it comes to this House.

Preliminary point on terminology

7.People can be forgiven for not knowing what statutory instruments are or how they are made. They are important all the same. Before turning to the heart of this Bill, we set out the types of parliamentary procedure (where there is one) that apply when Ministers make regulations, which have the force of law, under powers delegated to them under this Bill.3 The Bill provides for two main types of procedure:

(a)The negative procedure. Regulations are made by the Minister without a need for any prior debate at all. They can subsequently be annulled following an adverse vote in either House. The great majority of regulations are made under the negative procedure and the Government have indicated that this will be the case under this Bill.

Since 1950, negative procedure instruments have been annulled only six times as a result of action taken by the House of Commons. This happened on four occasions in 1951, and not at all since 1979. Since 1950, just one negative procedure instrument has been annulled as a result of action taken by the House of Lords.

(b)The affirmative procedure. In the case of “draft affirmatives”, the regulations are laid before Parliament in draft and cannot be made into law by Ministers unless they are debated and approved by both Houses. In the case of “made affirmatives” (typically used for urgent cases), the regulations are made and come into force but cannot remain in force unless debated and approved by Parliament within one month of being made.4

Since 1950, affirmative procedure instruments have failed to secure approval on ten occasions only, five in each House, a rejection rate of one every six or seven years.

Our expectations

8.In our 23rd and 30th Reports from the last Session,5 we set out our expectations for the delegated powers in this Bill.

Expectations not met

9.The Bill has failed to meet our expectations on all the above points.

Our detailed comments on particular clauses

10.Bearing in mind our remit, we confine ourselves to reporting on what we regard as an inappropriate delegation of power or an inappropriate parliamentary procedure attaching to the exercise of those powers. We do not comment on general political questions relating to our withdrawal from the EU, in particular the devolution settlement. Throughout the Report, we give hypothetical examples of what the powers in the Bill could enable Ministers to do. That should not be construed as implying that Ministers will do these things. But we do judge powers on how they might be used and not just on how the Government indicate that they intend to use them.

11.We draw attention to clauses 7, 8, 9, 11, 14, 17, and Schedules 3 to 5 and 7. For each provision on which we report, we set out (i) its effect; (ii) our concerns; and (iii) our recommendations.


1 We are talking about 60 years of EU-derived law: the 44 years since the UK joined the EEC on 1 January 1973 and the previous 16 years’ law, dating from the creation of the EEC in 1957, which the UK inherited when it joined.

2 Department for Exiting the European Union, European Union (Withdrawal) Bill: Delegated Powers Memorandum: https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/delegated%20powers%20memorandum%20for%20European%20Union%20(Withdrawal)%20Bill.pdf [accessed 27 September 2017].

3 After they are made by Ministers, the regulations are published as statutory instruments under the Statutory Instruments Act 1946.

4 Schedule 7, para. 11(4).

5 23rd Report, Session 2016–17 (HL Paper 143) and 30th Report, Session 2016–17 (HL Paper 164).

6 See para. 107 below.

7 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 26 September 2017].




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