Summary of our Main Recommendations
1.Powers given to Ministers to “correct” retained EU law are too wide.
- The test in clauses 7 to 9 and 17 should be whether remedial action is objectively necessary rather than whether the Minister thinks it is appropriate.
- Tertiary legislation should be subject to the same parliamentary control and time-limits applicable to secondary legislation.
- Ministers should not be able to amend or repeal the European Union (Withdrawal) Act by statutory instrument.
2.The Order in Council powers in clause 11 (devolution) are inappropriate. Separate Bills should provide for the conferral on devolved institutions of competencies repatriated from the EU.
3.Regulations under clause 14 stipulating exit day(s) should be subject to the affirmative procedure.
4.Schedule 4 (fees and charges) is unacceptably wide. Taxation and “tax-like charges” are matters for Parliament, not for Ministers under secondary legislation or other bodies under tertiary legislation. All regulations made under Schedule 4 which introduce or increase fees should be subject to the affirmative procedure.
5.In the absence of a convincing explanation to the contrary, the affirmative procedure should apply to Henry VIII powers under clauses 7 to 9 and 17 that allow Acts of Parliament to be amended or repealed.
6.Ministers should not have an unfettered choice to apply the negative or the affirmative procedure for statutory instruments under those clauses. We propose instead a sifting mechanism:41
- Ministers lay all instruments in draft before Parliament, proposing either the affirmative or the negative procedure.
- Where the Minister proposes the affirmative procedure, it applies.
- Where the Minister proposes the negative procedure, a parliamentary committee has 10 sitting days in which to recommend the affirmative procedure instead. If no such recommendation is made, the negative procedure applies.
- Where the committee recommends the affirmative procedure, it applies unless the relevant House rejects the committee’s recommendation within a further period of five sitting days.
41 In urgent cases, the procedure in paragraph 107(f) applies.