This is a joint letter from the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) and the Secondary Legislation Scrutiny Committee (SLSC). As you know from our submissions to your inquiry into the delegated powers in the European Union (Withdrawal) Bill (EUWB), both Committees have a keen interest in the parliamentary scrutiny procedures to be applied to the secondary legislation made under the EUWB and other Brexit-related Acts.
We would like to thank you for sending to us your recent interim report, “Scrutiny of delegated legislation under the European Union (Withdrawal) Bill”. We welcome the continuation of the collaborative approach which you have demonstrated from the outset of your inquiry. We note, and endorse, the sentiment expressed in your Committee’s report that “the bodies of both Houses charged with scrutiny of [instruments laid under the EUWB] will find it beneficial to share information and move in step as far as possible”. Scrutinising the legislation arising from the decision to withdraw from the European Union, effectively and within the timeframe available to us, presents an unprecedented challenge to the scrutiny capacity of the two Houses. We have no doubt that we can meet that challenge but we are under no illusion as to its extent. In these circumstances, it is imperative that the two Houses should, as far as possible, work together in pursuit of a common aim of holding the Government to account in relation to the secondary legislation that will implement the UK’s withdrawal from the European Union.
We welcome the practical recommendations you make in your report. You urge departments and the Cabinet Committee on Parliamentary Business and Legislation to “plan for a steady flow of instruments” and “avoid unnecessary peaks and troughs in its workload”. The SLSC, in its second submission to your Committee, said that the Government should “ensure proper management of the flow of instruments and clustering of associated instruments, offering advance information about the planned flow”. We therefore fully support your proposal for a schedule, published and regularly updated, showing the Government’s intentions with regard to the flow of instruments.
Whilst we recognise that, in the circumstances, a perfectly even flow might be difficult to achieve, we wonder whether the risk of significant peaks as we approach March 2019 could be mitigated to some degree by the Government agreeing to lay before Parliament, sooner rather than later, those instruments which may be regarded as routine and technical, and not dependent on the outcome of the Brexit negotiations.
We welcome your proposal that Explanatory Memoranda (EMs) should include a clear explanation about how an instrument complies with the requirements of the provisions of the EUWB. The SLSC, in its second submission, suggested that the EM template should be expanded to include material to explain what EU-derived legislation was being “domesticated”, by what means and whether the effect of the resulting domestic legislation was exactly equivalent to the effect of the EU-derived legislation and, if not, why not. We note that you are proposing that requirements in relation to the content of the EMs should be statutory. We question whether this is necessary (or desirable given that it might provide the basis for judicial challenge), and whether the same result could be better achieved by an amendment to the manual, Statutory Instrument Practice, published by The National Archives, which provides the current basis for the format of EMs.
As you know, some delegations of power in the EUWB are expressly subject to the affirmative resolution procedure, and the level of scrutiny applied to all other powers is to be determined by the Minister. The DPRRC, in its report on the EUWB, recommended that, where the Minster had such a choice and had chosen to apply the negative resolution procedure, the relevant regulations should be subject to a sifting mechanism which would enable a committee of either House to recommend that the affirmative procedure should apply. Whilst different in some important respects, the proposals in your report are clearly intended to achieve the same outcome as that intended by the recommendations of the DPRRC: namely, ensuring the effective parliamentary scrutiny of Brexit-related secondary legislation. We believe that your report is a valuable contribution to this important debate. We recognise that your report is an interim report and that you intend to publish a further report setting out your proposals in more detail. Given this, we hope that you might find it helpful if we were to set out some points that have occurred to us in our consideration of your report:
We hope that you find this letter of assistance. We are very keen to maintain the collaborative approach which you have so helpfully adopted, and we look forward to further exchanges in the future, particularly in the light of the House of Commons consideration of Schedule 7 to the EUWB and the Government’s response to your report.
5 December 2017