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How Parliament will scrutinise changes to Retained EU Law (REUL) has been a matter of concern since the Government announced it would introduce the ‘Brexit Freedoms’ Bill. The Minister for Brexit Opportunities has now suggested Legislative Reform Orders (LROs) as a possible solution. But what are LROs and what would this mean for scrutiny of REUL?
Dr Tom West
Tom joined the Hansard Society in July 2021 and is focussed on its programme of work on how Parliament legislates, in particular being responsible for the co-ordination of its Delegated Legislation Review. Tom conducts research for the Society on legislative processes and procedures and supports its collaboration and partnership with other stakeholders and networks active in the field. Previously, Tom was employed at the UN in the secretariat of the Aarhus Convention Compliance Committee, an international law body tasked with assessing States’ compliance with their obligations relating to transparency, participation and justice in environmental decision-making. He has also given evidence to Parliamentary Committees and has engaged with the design and passage of new legislation through his role at environmental law NGO ClientEarth, where he led their work in response to Brexit. During that time he was a member of BIICL’s Expert Working Group on the EU (Withdrawal) Bill and the Rule of Law. Having first studied for a BSc in Mathematics at the University of Warwick, Tom then turned to law via an MSc in Law and Environmental Science and a PhD in international human rights and environmental law at the University of Nottingham, which he completed in 2017.
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You could be forgiven for missing Jacob Rees-Mogg’s letter to the Business, Energy and Industrial Strategy (BEIS) Select Committee on the 21 June. At the time, media attention focused on the launch of the Government’s interactive dashboard cataloguing over 2,400 pieces of REUL on the statute book. In the days since, there have been other events grabbing the headlines in Westminster. But tucked away in Rees-Mogg’s letter was the news that the Government thinks there “will be a strong case” for using the Legislative Reform Order (LRO) process in its review of Retained EU Law (REUL). The Minister made clear that the LRO process may be a “key tool” in addressing the Government’s plans for REUL and said he hoped the Committee “would look upon that ambition favourably.”
This is the most concrete indication of the Government’s thinking since Lord Frost first announced the review and its proposed “tailored mechanism for accelerating the repeal or amendment” of REUL. Whether LROs are the right tool for the job will depend on the purpose, scope and duration of the powers to modify REUL that appear in the ‘Brexit Freedoms’ Bill.
The LRO process does provide a greater role for Parliament in the scrutiny and approval of Statutory Instruments (SIs) than the standard procedures. But as the Bill has not yet been published, we do not know whether the LRO model is intended to apply in its entirety to all SIs made under the Bill, or some subset of them. Nor do we know how the powers will be drafted. Ultimately, inappropriate powers cannot be remedied by improved scrutiny mechanisms. But an appearance of LROs in the ‘Brexit Freedoms’ Bill would be a welcome recognition by the Government of the importance of scrutiny and accountability when making changes to this important body of law.
But what are LROs, how do they work, and what might the procedure mean for the review of REUL?
The Legislative and Regulatory Reform Act 2006 provides powers for Ministers to remove or reduce legislative burdens through LROs. These powers are among the broadest ever to reach the UK statute book: during its passage through Parliament, the Bill was condemned by campaigners as the “Abolition of Parliament Bill” and by Daniel Finkelstein as the “Bill to end all Bills”.
During the passage of the Bill, the (already bespoke) scrutiny elements of the proposed LRO process were further enhanced and a scrutiny procedure now widely known as the ’super-affirmative’ procedure emerged. The combination of scrutiny provisions provides for the highest level of parliamentary scrutiny that can be applied to Statutory Instruments.
The LRO process differs from the standard SI procedure in a number of important ways. There are three gradations in the LRO process: as with standard SIs, there is a ‘negative’ procedure and an ‘affirmative’ procedure, but there is also the ‘super-affirmative’ procedure. Even the ‘negative’ and ‘affirmative’ LRO procedures have some important differences to the standard ones. The key elements of the overall process are:
Ministers must consult with relevant organisations before laying an LRO.
When an LRO is laid, a Committee in each House may upgrade the procedure that the LRO is subjected to. The Committees have 30 days to make a decision to upgrade, which can be overridden by a vote in the relevant House.
The Committees may recommend that no further proceedings be taken in relation to a draft Order (no matter what the scrutiny procedure). This effectively vetoes the Order, unless that recommendation is overturned by a resolution of the relevant House.
An LRO subject to the ‘negative’ procedure can be made 40 days after being laid so long as neither Committee vetoes it and neither House has resolved that it should not be made.
An LRO subject to the ‘affirmative’ procedure can be scheduled for debate and approval 40 days after it has been laid.
An LRO subject to the ‘super-affirmative’ procedure can be reported on a second time by the Committees up to 60 days after it has been laid. These reports may include recommendations to amend the draft Order and the Minister must have regard to them. After the 60-day period, the LRO can be scheduled for debate and approval. The Minister may decide to lay a revised Order or proceed with the un-amended LRO. Regardless, the Minister must lay a written statement in both Houses detailing the representations made, and any revisions proposed.
In the Commons, an LRO subject to the affirmative or super-affirmative procedure can be approved by the House without debate if the Committee did not divide on a recommendation that it should be approved.
There is a key role for permanent parliamentary committees of both Houses in the LRO process. In the House of Lords, the Delegated Powers and Regulatory Reform Committee (DPRRC) scrutinises LROs. In the Commons, until recently there was a dedicated Regulatory Reform Committee (RRC). However, the RRC was abolished in May 2021 with its responsibilities transferred to the BEIS Select Committee. These committees also undertake the legal scrutiny usually done by the Joint Committee on Statutory Instruments (JCSI).
The central role played by the DPRRC and the BEIS Committees in the scrutiny of LROs is unusual. Most SIs do not benefit from detailed consideration by a Commons Select Committee. In the Lords, the Secondary Legislation Scrutiny Committee (SLSC) reports on SIs, but it has fewer powers to influence the procedure and content than the DPRRC does in relation to LROs, and the SLSC cannot veto an SI.
These powers are not merely theoretical. Following committee reports, LROs have had their scrutiny procedure upgraded, their content altered, and have even been withdrawn. On one occasion – in relation to the draft Legislative Reform (Horserace Betting Levy) Order 2018 – the Government did not proceed with the Order after it was criticised by the DPRRC and RRC following a joint evidence session.
LROs are relatively rare: less than 40 have been laid since the Legislative and Regulatory Reform Act was passed in 2006, significantly fewer than was originally anticipated. For comparison, more than that number of ‘regular’ SIs are normally laid each month.
Government guidance for policy officials published in 2016 states that LROs are a good option for measures that do not warrant a Bill or do not get a Bill slot, but that for “highly contentious and political matters, primary legislation remains the best option”.
A notable drawback of the LRO procedure is that it is time-consuming. The ‘quick start’ version of the 2016 Government guidance noted that it can take 10-14 months from the start of the consultation for an LRO to reach the statute book. The same document notes that “the resources required can be similar to that required for a Bill.”
Given the volume of REUL (there are over 2,400 pieces of REUL according to the Government’s dashboard), the potential number of SIs required to amend it may be quite high. The Government’s preliminary Post-Legislative Assessment of the 2006 Act (published in 2014) noted that resourcing the internal policy, economic or legal support for an LRO within Whitehall departments can be difficult and that it may be easier to deliver deregulatory measures through a Bill, where that option is available.
Yet, despite the greater demands that LROs place on officials and ministers compared to other SIs, the Government’s 2014 Assessment concluded that they are still a useful tool: the majority of LROs were deemed to have been successful.
Nonetheless, constitutionally, delegated legislation is not the appropriate tool to use to make significant changes to policy, and especially not if this is to be done in an accelerated fashion. It is notable that a recently leaked letter from the Treasury about REUL also argued for the use of a bespoke Bill rather than amendment of tax-related REUL measures via powers in the ‘Brexit Freedoms’ Bill.
The additional scrutiny safeguards attached to the use of LROs would certainly give Parliament greater control over the use of ministerial powers in a prospective ‘Brexit Freedoms’ Bill. However, parliamentarians will have to be wary of the Government applying a ‘cherry-picked’ version of the LRO process to the broadest and most significant powers, or applying it to only some of those powers. The following features of the LRO process are particularly valuable:
statutory consultation with the public and/or affected stakeholders;
parliamentary control over the degree of scrutiny that should apply to any changes ministers propose to make to REUL;
substantive consideration of and a report on the proposed changes by a dedicated permanent Select Committee, in particular in the House of Commons; and
provision for the Government to amend an Order to address concerns expressed by parliamentarians.
Mechanisms such as these are likely to be necessary for the ‘Brexit Freedoms’ Bill given the scale and breadth of the task involved in reviewing Retained EU Law. As the Hansard Society has previously noted, REUL covers a wide range of policy areas and includes diverse types of law: from overarching legal principles to detailed technical rules. A ‘one-size-fits-all’ approach to scrutiny is therefore unlikely to be appropriate.
The key role of committees in LRO scrutiny raises an obvious but important question: if REUL is to be subject to the LRO process in some form, which Committees would conduct the scrutiny? If current LRO arrangements are followed, it would be the BEIS Committee in the Commons and the DPRRC in the Lords. But the capacity of those committees to perform the LRO scrutiny function in relation to REUL would depend on the anticipated volume of Orders and the timescale for their introduction. It will be necessary to ensure that the committees have the capacity and resources needed for this important task.
The extent of the remit given to the scrutiny committees will also be important. Some committees are given restrictive criteria – often legal in nature – to define the focus and limits of their scrutiny role. However, parliamentary scrutiny of SIs cannot be reduced purely to an assessment of whether certain legal tests have been met. Parliament may also wish to scrutinise, dispute or reject an SI on grounds of policy merit or political salience.
Historically, the RRC’s approach was to "make no assessment of the policy within the draft Order” or at least it did not do so “other than where [the policy] intersects with the prescribed criteria”. And in one of its first LRO Reports, the DPRRC noted that its role “is not to consider in depth the policy”. The BEIS Committee has so far reported on only two LROs. It is therefore too early to comment on whether its approach will differ, but the Committee did note last month in relation to one of those Orders that it had “general policy concerns” about the approach proposed by the Department. Nonetheless, despite these policy concerns, the Committee still recommended that the draft Order by approved.
Given the nature and importance of REUL, the criteria for scrutiny should be more widely drawn. There are precedents: the SLSC looks at whether an Instrument is “politically or legally important or gives rise to issues of public policy likely to be of interest to the House” and the European Scrutiny Committee can “report its opinion on the legal and political importance of [EU documents]”.
Publication of the 'Brexit Freedoms' Bill - a flagship piece of legislation in the Queen's Speech - was promised before the Summer recess but has not yet appeared. It is possible that ministerial changes in Government once the new Prime Minister is appointed in September may lead to further delays through to the Autumn. But the approach proposed by the incumbent Minister for Brexit Opportunities for scrutiny of REUL might, if followed through, be an important step in the right direction in rebalancing the relationship between Parliament and the executive when it comes to scrutiny of delegated legislation. If the Minister does not remain in post, it is to be hoped his idea does not get lost in the reshuffle.
West, T. (2022), ‘Brexit Freedoms’ Bill: Is Jacob Rees-Mogg planning to give Parliament more control over Retained EU Law? (Hansard Society: London)
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