As drafted, the European Union (Withdrawal) Bill will strengthen the hand of the executive, not Parliament, because of its provisions for delegated powers and their scrutiny.
The broad scope of the delegated powers (including Henry VIII powers) within the EU (Withdrawal) Bill, 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.
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:
- The EU (Withdrawal) Bill should be amended to circumscribe the powers it delegates more tightly;
- A new, bespoke, EU (Withdrawal) Order strengthened scrutiny procedure should be introduced for the exercise of the widest delegated powers; and
- A new House of Commons ‘sift and scrutiny’ system – with a dedicated Delegated Legislation Scrutiny Committee – should be established for all delegated legislation.
Table of contents
- Executive summary
- The European Union (Withdrawal) Bill: delegated powers and their scrutiny
- House of Commons scrutiny of delegated legislation: an inadequate system
- A new ‘sift and scrutiny’ system for the House of Commons
- A new strengthened scrutiny procedure for the European Union (Withdrawal) Bill
- Reform of House of Lords scrutiny of delegated legislation
- Appendix: The negative and affirmative procedures under the proposed new ‘sift and scrutiny’ system in the House of Commons
Enjoy reading this? Please consider sharing it
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 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.
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?
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.
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.
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?