A Parliamentary Scrutiny Solution For The EU (Withdrawal) Bill
Share this
The government has said the ‘principal objective of leaving the EU is for Parliament to take back control of UK laws and policies’. The EU (Withdrawal) Bill is the first legislative test of this. Before the Bill’s 7 September House of Commons second reading debate, we outline the proposals for it in our new paper ‘Taking Back Control for Brexit and Beyond’.
The challenge facing Parliament is the conjunction of the Bill’s wide delegated powers, including Henry VIII powers, with inadequate scrutiny procedures for the ways these powers might be exercised.
This combination will inhibit MPs’ ability to hold the government to account and neuter their capacity to influence some of the policy choices arising from the UK’s withdrawal from the EU.
Delegated powers are powers that Parliament gives to ministers in Acts of Parliament to make law (in the form of delegated legislation or Statutory Instruments (SI)) without having to pass another Act. An SI is the ‘child’ of the power in the ‘parent’ Act and can be used to fill out, update, or even amend primary legislation. Delegated powers to amend or repeal primary legislation are known as Henry VIII powers.
In legislating for Brexit, the government faces a genuine challenge, owing to the tight deadline, the volume of legislation involved, and the need for speed and flexibility to cope with the outcome of the UK-EU negotiations. The use of delegated legislation, including the use of Henry VIII powers, is unavoidable.
But, as the EU (Withdrawal) Bill is drafted, the broad scope of its delegated powers, the inadequate constraints placed on them, and shortcomings in the proposed parliamentary control of the delegated legislation that will be made using them, constitute a toxic mix, for Parliament and the balance of power between executive and legislature. The balance must be redressed in Parliament’s favour by improving parliamentary scrutiny of both delegated powers and delegated legislation.
1. The EU (Withdrawal) Bill should be amended to circumscribe the powers it delegates more tightly.
Previous legislation, such as the Legislative and Regulatory Reform Act 2006, provides examples of ways in which Parliament could introduce safeguards into the EU (Withdrawal) Bill to tighten the scope and application of the powers.
2. A new, bespoke, EU (Withdrawal) Order strengthened scrutiny procedure should be introduced for the exercise of the widest delegated powers
In previous bills which included powers of similar breadth and scope to those in the EU (Withdrawal) Bill, Parliament (particularly the House of Lords) has made the exercise of those powers subject to a strengthened scrutiny procedure (i.e. not the normal negative or affirmative procedure). The EU (Withdrawal) Bill proposes no such procedure.
However, the House of Lords is likely to insist on the use of strengthened scrutiny for the widest powers in the Bill, if MPs do not do so first.
For reasons the report sets out, none of the existing strengthened scrutiny procedures will meet the Brexit need for legislative speed and flexibility, if the government is to deliver a functioning statute book the day after we leave the EU.
The Hansard Society has therefore designed a new strengthened scrutiny procedure - the EU (Withdrawal) Order procedure - for use in this and other Brexit bills. The key feature of the procedure is that Parliament, not the government, will decide how the exercise of the broadest powers in the Bill will be scrutinised.
3. A new House of Commons ‘sift and scrutiny’ system – with a dedicated Delegated Legislation Scrutiny Committee – should be established for all delegated legislation
Concerns over parliamentary scrutiny of delegated legislation under the EU (Withdrawal) Bill arise partly because the way in which Parliament, particularly the House of Commons, deals with delegated legislation is wholly inadequate, and has long and widely been recognised as such. The Hansard Society concluded in 2014 that the system was unfit for purpose and in need of wholesale reform, after it undertook the first in-depth study of the subject in over 80 years.
But successive governments have made no effort seriously to engage with the problem, and the House of Commons, unlike the House of Lords, has not fundamentally altered its handling of delegated legislation in years.
The Hansard Society proposes that a new Delegated Legislation Scrutiny Committee should be established in the House of Commons for the scrutiny of all delegated legislation, including that made under the EU (Withdrawal) Bill and other Brexit bills.
The new system would:
Be in the control of MPs not whips, with the chair and members elected in the same way as other select committees;
Be supported by a set of thematic sub-committees, some of whose members would also be members of relevant departmental select committees – thereby building links to Members with relevant policy knowledge and expertise;
Have administrative, legal and research support via a committee secretariat;
Sift and scrutinise both negative and affirmative SIs and those subject to strengthened scrutiny procedures; and
Turn over to the whole House for further consideration those SIs of concern, with procedures in place to ensure that any SI reported to the House would have to be debated and voted on. Members would be granted a ‘conditional amendment’ power, alongside procedural hurdles designed to ensure that Ministers cannot ignore MPs’ concerns.
The current, discredited, scrutiny system for negative and affirmative SIs, which gives MPs no meaningful voice and wastes their time, would be abolished.
Better scrutiny: not just for Brexit
Better scrutiny should be a permanent feature of parliamentary life, not just for Brexit. The political salience of Brexit-related legislation, and the ‘take back control’ rhetoric surrounding it, now finally and fatally expose the shortcomings of the Commons’ current delegated legislation scrutiny system. MPs can no longer be indifferent to these inadequacies, and must finally take seriously their democratic responsibility for delegated legislation.
If the political will exists, the Hansard Society’s proposed new system could be in place for Spring 2018, ready for the emergence of the first SIs under the EU (Withdrawal) Bill after it receives Royal Assent.
If not now, when?
Given the government’s promise about Parliament ‘taking back control’, the way in which Parliament manages this legislative process will be among the criteria for judging whether a success has been made of Brexit. Get it wrong, and Parliament and the political class could again incur untold reputational damage. Parliamentary accountability for the Brexit process must be secured, and doing so should be a matter of interest to ‘leavers’ and ‘remainers’ alike. Given the length of time it has been known that the House of Commons procedures for scrutiny of delegated powers and delegated legislation are deeply flawed, if Brexit is not the time to put things right, when will be?
The end of the transition period is likely to expose even more fully the scope of the policy-making that the government can carry out via Statutory Instruments, as it uses its new powers to develop post-Brexit law. However, there are few signs yet of a wish to reform delegated legislation scrutiny, on the part of government or the necessary coalition of MPs.
Parliament’s role in scrutinising the UK-EU Trade and Cooperation Agreement is a farce
Parliament’s role around the end of the Brexit transition and conclusion of the EU future relationship treaty is a constitutional failure to properly scrutinise the executive and the law. As the UK moves to do things differently after 1 January, MPs must do more to ensure they can better discharge their responsibilities regarding the making of UK treaties.
Expediting of the European Union (Future Relationship) Bill through Parliament: five issues
The EU (Future Relationship) Bill is to be considered by both Houses in just one sitting day. How unusual is such an expedited timetable and how much time will parliamentarians really have to look at the Bill? How will MPs participate in proceedings given Covid-19 restrictions? And how will proceedings, particularly the amendment process, work on the day?
Reviewing Restoration and Renewal and planning for a post-pandemic Parliament
The Coronavirus pandemic has added to the questions surrounding the nature of the Parliament that should emerge from the Palace of Westminster Restoration and Renewal programme. But, with concerns over the programme’s governance and public engagement rising, the report arising from the current review of the programme will not now be published this year.
Why the exclusion of pregnant MPs from the House of Commons during Covid-19 matters – for them and for others
The debate about remote participation in House of Commons proceedings raises critical questions about what constitutes a ‘good parliamentarian’, what ‘fair’ participation looks like, and who gets to decide. As things stand, the exclusion from much parliamentary business of pregnant women, among others, undermines equality of political representation.
Controverted elections: how disputed results used to be part and parcel of English political and parliamentary life
Disputed parliamentary election results – often taking months to resolve – were a frequent feature of English political culture before the reforms of the 19th century. But how could defeated candidates protest the result of an election, and how were such disputes resolved?