The government has said that the ‘principal objective of leaving the EU is for Parliament to take back control of UK laws and policies’. The European Union (Withdrawal) Bill, on which the second reading debate starts in the House of Commons on 7 September, is the first legislative test of what this means. As drafted, the Bill will strengthen the hand of the executive, not Parliament, because of the delegated powers it contains and the parliamentary procedures it proposes for their use. Important constitutional principles about the relationship between the executive and the legislature are at stake.
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.
In a new report, ‘Taking Back Control for Brexit and Beyond: Delegated Legislation, Parliamentary Scrutiny and the EU (Withdrawal) Bill’, the Hansard Society proposes a three-part solution to the problem:
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?