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Taking Back Control for Brexit and Beyond: Delegated Legislation, Parliamentary Scrutiny and the European Union (Withdrawal) Bill

5 Sep 2017
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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.

Joel Blackwell, Senior Researcher, Hansard Society
Dr Brigid Fowler, Senior Researcher, Hansard Society
Dr Ruth Fox, Director , Hansard Society
, Senior Researcher, Hansard Society

Joel Blackwell

Joel Blackwell
Senior Researcher, Hansard Society

Joel conducts the Society’s continued research into the legislative process, the effectiveness of Parliament in scrutinising and holding the executive to account and the public’s engagement with politics.

He is co-author of 'The Devil is in the Detail: Parliament and Delegated Legislation'. Prior to joining the Hansard Society in 2014, Joel was a Political Consultant for Dods Parliamentary Communications and has also worked at the Electoral Commission. He graduated from Bristol University in 2005 with a degree in Politics and Social Policy.

, Senior Researcher, Hansard Society

Dr Brigid Fowler

Dr Brigid Fowler
Senior Researcher, Hansard Society

Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.

After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.

, Director , Hansard Society

Dr Ruth Fox

Dr Ruth Fox
Director , Hansard Society

Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.

In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.

In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.

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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 is the first legislative test of what this means.

The Bill will confer significant powers on ministers to amend or repeal elements of the statute book, with limited parliamentary scrutiny of and control over how they might choose to exercise those powers. As such, it will strengthen the hand of the executive, not Parliament.  Constitutional principles about the relationship between the executive and the legislature are at stake. The balance must be redressed in Parliament’s favour by improving parliamentary scrutiny of both delegated powers and delegated legislation.

This paper proposes a three-part solution:

  1. The EU (Withdrawal) Bill should be amended to circumscribe the powers it delegates more tightly.

  2. A new strengthened scrutiny procedure should be introduced for the exercise of the widest delegated powers in the EU (Withdrawal) Bill.

  3. The House of Commons should establish a new ‘sift and scrutiny’ system for delegated legislation in general.

The precedents provided in previous legislation, including the Legislative and Regulatory Reform Act 2006, provide examples of how Parliament could introduce safeguards into the EU (Withdrawal) Bill to tighten the scope and application of the powers. 

The Bill requires Parliament to agree in advance the scrutiny procedures that will apply to uses of delegated powers without knowing fully how the powers will be exercised. In doing so it pre-determines what Parliament should debate.

Other Acts which confer upon a minister a significant 'Henry VIII power' to amend primary legislation have made the use of such a power subject to a strengthened scrutiny procedure. None is proposed in this Bill.

Eleven variants on a strengthened scrutiny procedure currently exist but none are suitable for the powers in the EU (Withdrawal) Bill. The provision of statutory consultation periods, a committee veto, and a trigger to extend the scrutiny period from 40 to 60 days make them impractical for the Brexit process.

The proposed new procedure will apply to the widest powers in the EU (Withdrawal) Bill. It will require amendment of the Bill and could also be applied to powers in other Brexit legislation that follows.

The key feature is that in the first 20 days of the scrutiny period Parliament (via its delegated legislation committees), not ministers, will decide how the exercise of the powers will be scrutinised. The committees will have the power to upgrade a Statutory Instrument (SI) subject to the 'negative' scrutiny procedure to the higher 'affirmative' scrutiny procedure. Once the scrutiny level has been determined, the SI will be subject to the new scrutiny system in the House of Commons and existing procedures in the House of Lords.

The current system of ‘praying’ against SIs using an Early Day Motion, and 90-minute Delegated Legislation Committee debates followed by a pointless vote on a consideration motion, would be abolished. In its place a new permanent Delegated Legislation Scrutiny Committee (DLSC) should be established for the scrutiny of all SIs in this and other bills. It would:

  • be in the control of Members not whips, with the chair and members elected in the same way as other select committee;

  • be supported by a set of sub-committees, some of whose members would also be members of relevant departmental select committees;

  • 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 to ensure that ministers cannot ignore their concerns. 

If implemented, our proposals will: 

  • provide for more rigorous and systematic scrutiny, and reflect the fact that Parliament is delegating power to the executive, not subordinating itself to the government’s wishes;

  • make a government response to the legitimate concerns of parliamentarians about SIs a requirement not an option;

  • give MPs a meaningful role and voice in the process, and make more efficient and effective use of the time they spend scrutinising SIs;

  • retain the top-level architecture of the present delegated legislation system, including affirmative, negative and strengthened scrutiny procedures and the standard 28- and 40-day scrutiny periods for SIs, addressing government concerns about time and speed;

  • require amendments to Standing Orders but not to the Statutory Instruments Act 1946, which would unhelpfully take up further parliamentary time. 

Blackwell, J. & Fowler, B. & Fox, R. (2017) Taking Back Control for Brexit and Beyond: Delegated Legislation, Parliamentary Scrutiny and the European Union (Withdrawal) Bill (London: Hansard Society)