Parliament not Ministers should decide level of scrutiny of Brexit secondary legislation

In addition to drawing attention to the “excessively wide law-making powers” the Bill gives to Ministers, the report recommends that Ministers should not have an “unfettered discretion” to decide whether the wide-ranging secondary legislation likely to stem from the Bill should be subject to the full scrutiny of the affirmative procedure or the less robust negative procedure.

Instead, the Committee recommends a new procedure that, where the Minister proposes the negative procedure, a Committee of each House, or a joint Committee of both Houses, should be given 10 days to overturn the Minister's proposal and upgrade scrutiny to the affirmative procedure.

The proposed new sifting mechanism is important because a piece of secondary legislation – also known as a statutory instrument - subject to the affirmative procedure does not become law until both Houses of Parliament have agreed it while an instrument subject to the negative procedure will automatically become law unless either House votes it down.

The Committee believes that the proposed sifting mechanism will strike a balance between the scrutiny requirements of Parliament and the business needs of the Government.

The Committee also finds that:

• The Bill gives Ministers excessively wide legislative powers beyond what is necessary to ensure UK law works properly when the UK leaves the EU.
• The Bill contains unacceptably wide ‘Henry VIII' powers, including allowing the Government to amend the Bill itself by statutory instrument.
• Ministers should not have the power to impose taxation by statutory instrument, and in no circumstances should fees and charges be levied by tertiary legislation.  Tertiary legislation is law made by public. bodies under powers conferred on them by Ministers in regulations
• Whatever powers the Government decide to transfer to the devolved institutions in Scotland, Wales and Northern Ireland, this should be done by means of separate Bills. Issues of such constitutional importance should not be left to secondary legislation.

Commenting Lord Blencathra, Chairman of the Committee said:

“The European Union (Withdrawal) Bill is one of the most important Bills in the constitutional history of the UK, and it seeks to confer on Ministers an extensive range of powers, unique in peace-time. In our report, we make recommendations about the scope of those powers, and about how Parliament can play an effective role in scrutinising how Ministers choose to exercise them.

“We have put forward what we think is a sensible proposal which will enable the Government to use secondary legislation to implement the decision to withdraw from the EU whilst ensuring that it is Parliament – not the Government – which decides the level of scrutiny applied to that legislation. We are proposing that a committee of each House - or a new joint committee - is given the role of deciding whether, where a Ministers says an instrument should be subject to only the negative procedure, that level of scrutiny should be upgraded to the affirmative procedure, thereby requiring positive Parliamentary approval to become law.

“We think the establishment of such a committee, with a 10-day timeframe to make a decision, would allow the Government to move the legislative process forward at an appropriate pace while ensuring Parliament is not overlooked or ignored.

“In examining the European Union (Withdrawal) Bill, we took the view that it was important to maintain the same objective standard in assessing the powers in this Bill as we have done with all previous Bills, and that we should not treat the powers in the Bill differently simply because of the unprecedented circumstances with which the country is now faced. To do so would involve a political judgment which should rest with Parliament as a whole. It is for this reason that we have proposed a sifting mechanism so that Members in both Houses can apply their political judgment by exercising the power to decide which instruments should be subjected to the more robust scrutiny of the affirmative resolution procedure and which can be adequately dealt with by the negative procedure.

“We are confident that the Government will wish to take our suggestion on board and work with the other parties in Parliament to establish a mechanism of this kind.”