Taking back control? Initial thoughts on the Great Repeal Bill White Paper
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In the newly published White Paper, the government makes much of the theme ‘taking back control’. But the paper’s content does little to alleviate the fear that it is the executive, not Parliament, that will benefit from the Great Repeal Bill process. We have five initial questions raised by the paper.
1. When will the parliamentary votes on any Brexit deal be held?
The White Paper seems to reveal confusion in the government’s position regarding the timing of the votes that it has promised both Houses of Parliament on the Brexit deal. In the Prime Minister’s Lancaster House speech and at the start of the EU (Notification of Withdrawal) Bill second reading debate on 31 January the government said that the votes would be held before the deal ‘comes into force’. By the second day of the Bill’s committee stage on 7 February, the government said that it would bring forward a motion to approve the deal ‘before it is concluded’. In the Prime Minister’s statement yesterday and her foreword to the White Paper today, she reverted to the original ‘before it comes into force’ position. But paragraph 1.19 of the White Paper reintroduces ‘before it is concluded’. This may be carelessness, but the two phrases could mean very different things. Parliament now needs urgently to clarify with the government when exactly in the process it plans to put any final Brexit deal to the vote.
2. Is the government’s description of the delegated legislation process accurate?
On page 23 of the White Paper, the government states that parliamentary procedures allow Parliament to scrutinise as many or as few statutory instruments as it sees fit, and notes that Parliament can and regularly does both debate and vote on secondary legislation.
What the White Paper omits to mention, however, is that secondary legislation subject to the negative scrutiny procedure (the majority of this type of legislation) can only be debated if an MP ‘prays’ against it via an Early Day Motion (EDM). Even then, whether it is debated lies in the hands of the government, not Parliament. Paragraph 3.21 states that under the negative procedure members of either House can ‘require’ a debate and if necessary a vote. In fact, they can ‘request’ these, but they cannot ‘require’ them. The government controls the parliamentary timetable in the House of Commons, and it must therefore agree to grant the time for any debate. In the last parliamentary session, MPs debated just 3% of the 585 negative instruments laid before them. And although the Leader of the Opposition and his front bench colleagues tabled 12 prayer motions for a debate, just 5 were granted.
Sometimes the government doesn’t prevent a debate but runs down the clock and builds in delays that minimise the ability of MPs to revoke a regulation. In the last week alone, the Opposition had to secure an emergency debate under Standing Order 24 in order to debate the new Personal Independence Payment Regulations. 179 MPs from eight different parties prayed against the SI via an EDM, but the government only scheduled a debate for 19 April, 16 days after the ‘praying against’ period would have expired. This makes revocation difficult. The emergency debate was a means to air the issues before the annulment period came to an end, but it had no force, as there was no substantive vote on the regulations.
3. Is an additional 800-1,000 SIs to ‘correct’ the statute book - the number floated on page 24 of the White Paper - within Parliament’s scrutiny capacity?
The answer may be yes, if the majority of SIs brought forward are negative instruments. However, we cannot know in advance what the proportion of affirmative instruments will be. Under the current scrutiny procedure, affirmative instruments require the setting up of a Delegated Legislation Committee or the holding of a debate on the floor of the House. These absorb the time of Members, and valuable debating time in the Chamber. In the last parliamentary session, when output of SIs was relatively low, 114 SIs were considered in Committee and a further 13 on the floor of the House. If the volume of affirmatives were merely to double, it would have serious implications for the resourcing of the House, and Members’ workloads.
4. How will the line between technical and policy detail be policed?
In paragraph 1.22 of the White Paper the government states that its approach to the Bill is ‘not to make major policy changes through or under the Bill’. But the government makes clear elsewhere that delegated powers will be needed for more than technical amendments to the statute book. For example, in paragraph 3.9 it notes that relevant reasons for using secondary legislation will include: ‘matters which cannot be known or may be liable to change at the point when the primary legislation is being passed because the Government needs to allow for progress of negotiations; adjustments to policy that are directly consequential on our exiting the EU’.
Both categories would require a widely drawn power to facilitate substantive changes to policy, going well beyond a technical amendment.
This takes us to the crux of the problem, not just with this Bill but with the delegated legislation process overall. The use of delegated legislation by successive governments has increasingly drifted into areas of principle and policy, rather than the regulation of administrative procedures and technical areas of operational detail. As we have found in our research too much of the process of deciding where the line lies relies on ‘gut feeling’ and ‘judgement’ rather than objective criteria.
The only curb on this is effective parliamentary scrutiny. However, the White Paper is short on detail here. It proposes that existing procedures will be used, but mentions only the negative and affirmative routes, with no reference to the 11 enhanced scrutiny procedures that have been created to hem in broad powers akin to the ones proposed in this bill. These strengthened procedures share a number of common features, including a requirement to consult, and committee involvement in both Houses. One assumes that these have been thrown overboard as they have often proven onerous and would not meet the government’s desire for speed. However, they were introduced for a reason: because Parliament believed that the negative and affirmative scrutiny procedures offered insufficient constraint against the broad powers sought by Ministers.
It is also going to be difficult to assign a procedure to a power during the bill scrutiny process when it is not clear when and how the government may need to use it. This is why the Legislative Reform Order strengthened scrutiny process has some advantages, as it would require the government to publish an SI in draft and indicate what scrutiny procedure it thinks should apply; it would then be for Parliament to decide, having looked at the proposed application of the power, whether this would be appropriate and, if not, to upgrade it. Again, for reasons of speed it is likely that the government will resist such an approach; but it cannot have it all its own way. In exchange for being granted a wide, flexible power the government must make sensible concessions on the scrutiny process.
5. Better scrutiny: (not) just for Brexit?
In paragraph 3.23 the government states that it ‘is mindful of the need to ensure that the right balance is struck between the need for scrutiny and the need for speed. This White Paper is the beginning of a discussion between Government and Parliament as to the most pragmatic and effective approach to take in this area.’
In our view, use of the current scrutiny procedures, particularly in the House of Commons, would be tantamount to granting the government a blank cheque. But inventing a new, 12th, strengthened scrutiny procedure would simply add to the complexity of a system that is already a mess.
Contrary to much public and media comment in recent days, delegated legislation is not new, it is not archaic, and its impact will be just as serious on our daily life a year after Brexit as it will be the day after we leave the EU. We have long called for reform of the system. To make changes simply to accommodate the Great Repeal Bill would be a missed opportunity and once again let the government off the hook of dealing with this critical problem at the heart of our legislative system.
We will be shortly be publishing a proposal for a new scrutiny system for delegated legislation in the House of Commons that will serve the needs of the Brexit process and provide for improved scrutiny in the future. Because better scrutiny shouldn’t just be for Brexit.
In the run-up to the UK’s exit from the EU on 29 March 2019 we will be tracking the progress made by government and Parliament in preparing the statute book for exit day. Our analysis draws on parliamentary data and our own Statutory Instrument Tracker which we built several years ago to support our research on delegated legislation.
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