66.Clause 17(1) allows Ministers to make regulations containing such provision as they consider appropriate in consequence of the Bill.
67.The powers include a Henry VIII power to repeal or amend any Act of Parliament passed from earliest times until the end of the current Session.
68.We have already noted that, although the power is expressed as a power to modify primary legislation, and therefore may tend to suggest less substantial changes, “modify” is defined by clause 14(1) of the Bill to include amendment and repeal.
69.There is no time-limit on the making of regulations under clause 17, unlike the regulation-making powers in clauses 7 to 9.
70.Regulations under clause 17(1) are subject to the negative procedure, including where those regulations amend or repeal primary legislation.
71.In our 15th Report of the last Session on the Neighbourhood Planning Bill, we considered a similar regulation-making power which allowed the Minister to make such provision as the Minister considered “appropriate”. In that case we expressed concern about such widely-drawn powers and recommended a restriction based on an objective test of necessity rather than leaving this to the subjective judgment of the Minister. We have similar concerns here. The delegated powers memorandum does not explain the need for such widely-drawn powers. It states that regulations under clause 17(1) are limited to making amendments consequential to the contents of the Bill and not to consequences of withdrawal from the EU that are addressed by other powers (for example, under clauses 7 to 9). We are not convinced, given that the substantive effect of the Bill is to provide for the repeal of the European Communities Act 1972, with all that this entails.
72.Paragraph 15(2) of Schedule 7 makes it clear that regulations under clause 17(1) can amend or repeal retained EU law where doing so is consequential on the repeal by the Bill of any enactment contained in the 1972 Act. One consequence of the repeal of the 1972 Act is to remove the requirement to comply with, and implement, EU law. A Minister might at some point in the future rely on this to make substantive policy changes to retained EU law, going beyond remedying a defect. For example, the powers could be used to amend the Working Time Regulations on the basis that the changes are “appropriate” in consequence of the repeal of the 1972 Act and the UK no longer being under a duty to implement the Working Time Directive.
73.Established practice in other legislation has been to require the affirmative procedure for consequential amendments to primary legislation. The precedents given in paragraph 75 of the delegated powers memorandum are all ones which follow this practice. For Henry VIII powers to be routinely exercised by negative procedure instruments represents a significant departure from what Government and Parliament have hitherto regarded as acceptable. Paragraph 78 of the delegated powers memorandum justifies this on the ground that a large number of “fairly straightforward” changes, including to primary legislation, will be needed in consequence of this Bill. But that does not explain why it is appropriate for the negative procedure to apply in all cases including those which are not “fairly straightforward”.
74.The powers to make consequential provision conferred by clause 17(1) should be restricted by an objective test of necessity rather than being left to the subjective judgment of the Minister.
75.The Government should be asked to explain why it is necessary to have powers that go beyond those conferred by clauses 7 to 9.
76.In the absence of a convincing explanation, clause 17(1) should not be capable of being used to amend retained EU law.
77.Where regulations under clause 17(1) amend or repeal primary legislation, the affirmative procedure should — in the absence of a convincing explanation to the contrary — apply in accordance with established practice.
78.Where a decision is to be made on the appropriate level of parliamentary scrutiny applying to the making of regulations by Ministers under this Bill, Parliament and not Ministers should decide. When we come to Schedule 7, we recommend a sifting mechanism. Ministers may propose the level of scrutiny which is to apply, but Parliament should have the opportunity to require a higher level of scrutiny. The details are set out at paragraph 107 below. Regulations under clause 17(1), other than those which amend or repeal primary legislation and which should be affirmative, should be subject to this sifting mechanism.
28 15th Report, Session 2016–17 (HL Paper 104), para. 55.