The Northern Ireland Protocol Bill is scheduled for its Second Reading debate in the House of Commons on Monday 27 June 2022. This briefing on the delegated powers in the Bill analyses six areas of particular concern and proposes ways they might be mitigated during the Bill's passage through Parliament.
Dheemanth Vangimalla
Researcher, Hansard Society
Dheemanth joined the Hansard Society in July 2021 as a Researcher to contribute to the Review of Delegated Legislation. His role also involves supporting the day-to-day delivery of the Society’s legislative monitoring service, the Statutory Instrument Tracker®.
Dheemanth has a diverse professional background that includes experience in both the legal and non-legal sectors. He completed his MBBS degree at the University of East Anglia. He has since attained a Graduate Diploma in Law (GDL) while working full-time as a junior doctor at an NHS hospital trust. He has previously conducted legal research with the hospital’s legal services department. As a research assistant, he has also contributed to a public international law project concerning citizenship and statelessness. Additionally, he has experience conducting scientific and laboratory-based research during his BMedSci degree in Molecular Therapeutics at Queen Mary University of London.
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The six areas that we cover in detail are:
1. General matters that apply to all delegated powers in the Northern Ireland Protocol Bill, including:
a clause that in effect enables all regulation-making powers in the Bill to function as 'Henry VIII' powers, thereby enabling Ministers to amend, repeal or otherwise alter the effects of Acts of Parliament - including this Bill once it receives Royal Assent - by regulations;
the fact that regulations made under the Bill are subject to the ‘negative’ procedure, unless they amend an Act of Parliament or make retrospective provision, in which case they are subject to the ‘affirmative’ procedure – an approach that does not take into consideration the fact that some regulations that do not happen to amend Acts or make retrospective provision can still be legally or politically significant, warranting active parliamentary approval.
2. Drafting that enables Ministers to exercise powers to make provision that they consider “appropriate in connection with” other provisions.
3. A power that enables Ministers to “engage in conduct” relevant to the Northern Ireland Protocol (meaning, apparently but not exclusively, to engage in sub-legislative activity) without any parliamentary oversight.
4. A power that enables Minsters to implement – by regulations subject to limited parliamentary scrutiny – any new agreement with the EU which amends or replaces the Northern Ireland Protocol.
5. A clause that disapplies the hybrid instrument procedure, with no alternative safeguards put in place.
6. A power to ‘sub-delegate’ power to devolved administrations and determine the scrutiny that is to apply to the exercise of that ‘sub-delegated power’.
We make no comment on the Bill’s legal or policy merits. None of our suggestions about ways in which the drafting of delegated powers could be improved would prevent the implementation of the Bill’s intended policy. Our conclusions are intended to buttress the role of Parliament in scrutinising future executive action and regulations arising from this Bill once it achieves Royal Assent.
Our analysis draws heavily on ‘legislative standards’ which we have derived from reports of the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC). The DPRRC is an influential committee and provides the nearest thing to a form of ‘jurisprudence’ (or ‘legisprudence’) in the area of delegated powers.
Hansard Society (June 2022), The Northern Ireland Protocol Bill: Delegated Powers (London)
This work is supported by the Legal Education Foundation as part of the Hansard Society's Delegated Legislation Review.
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