Friday 29 September 2017

EU (Withdrawal) Bill - Delegated powers - Important House of Lords report

Previous posts have noted concerns in Parliament about the European Union (Withdrawal) Bill.  See 12th September - Deep concerns as EU (Withdrawal) Bill passes second reading in House of Commons;  7th September - House of Lords Constitution Committee - Interim report on EU (Withdrawal) Bill; and 6th September - Massive powers for Ministers under the EU (Withdrawal) Bill.

Numerous amendments put forward:

As at 14th September, the list of proposed amendments to the Withdrawal Bill extends to 74 pages!  See Notices of Amendments.

Delegated powers report:

An important further report contains trenchant criticism of the Bill.  It has been issued by the 
House of Lords Delegated Powers and Regulatory Reform Committee - Third Report Session 2017-19
The report's Main Recommendations are HERE.

Expectations and Disappointment:

In earlier reports the committee had set out its expectations for the delegated powers in the Bill and these expectations have not been met by the Bill as it stands.  The committee comments:
  • In our 23rd and 30th Reports from the last Session, we set out our expectations for the delegated powers in this Bill.
  • Ministers must not have unfettered delegated powers. In particular, it would be wholly unacceptable for the Bill to replicate the European Communities Act 1972 by giving the Government a choice to adopt whichever procedure they liked for statutory instruments made under the Bill.
  • Significant Henry VIII powers (the power of Ministers to override Acts of Parliament by statutory instrument) must be fully explained and justified.
  • The Bill must not enable major changes to policy or establish new frameworks beyond what is necessary to ensure that UK law continues to work properly on exit day.
  • Any time-limited delegated powers would need careful examination to see that they worked properly.
23rd Report, Session 2016–17 (HL Paper 143) and 30th Report, Session 2016–17 (HL Paper 164).

The Bill has failed to meet our expectations on all the above points.
  • The Bill subjects the law-making powers of Ministers to little parliamentary scrutiny. Apart from the small number of cases where statutory instruments must adopt the affirmative procedure, the Government have an unfettered choice as to which procedure to adopt. This is a radical departure from the norm and one that we regard as wholly unacceptable. We propose a sifting system that will give Parliament a say on the parliamentary procedure applicable to regulations made under the Bill.
  • The Bill confers on Ministers wider Henry VIII powers than we have ever seen.
  • Ministers have powers to alter 60 years of EU law when they consider it appropriate to deal with deficiencies arising from the UK’s withdrawal from the EU. This goes much wider than the Government’s White Paper commitment not to make major changes to policy beyond those that are necessary to ensure UK law continues to function properly from day one.7
  • Although time-limits apply to secondary legislation made by Ministers under clauses 7 to 9, they do not apply to secondary legislation made under other powers contained in the Bill, or to tertiary legislation (legislation made pursuant to secondary legislation). We have more to say about this later.

Early timing of the report:

Normally the Committee reports on a Bill in sufficient time to allow Members of the House of Lords to consider it before the Bill’s committee stage in the House of Lords.  However, the Committee notes that - "This Bill is of exceptional constitutional significance. Central to the Bill is the balance of power between Parliament and Government, including the propriety of giving Ministers such unprecedented powers to override Acts of Parliament subject, in the great majority of cases, to no scrutiny whatsoever on the floor of either House. Accordingly we have written this report in sufficient time for Members of the House of Commons to consider it at committee stage in their House. In due course, we will also report on the Bill in the form in which it comes to this House."

Tertiary legislation:

The report comments about powers within the Bill to enable the making of tertiary legislation.  The following is in the section of the report dealing with Clause 7

27.  The things that Ministers cannot do in regulations made under clause 7 bear some resemblance to the restrictions currently found in the European Communities Act 1972. However, there is something that regulations under clause 7 can do that regulations under the 1972 Act cannot. Regulations under clause 7 allow for “legislative sub-delegation”. That is to say, regulations under clause 7 may allow people or bodies, including Ministers themselves, to make further subordinate legislation (tertiary legislation) without there necessarily being any parliamentary procedure or even any requirement for the tertiary legislation to be made by statutory instrument. Paragraph 12 of Schedule 7 says that regulations made by Ministers must be made by statutory instrument. This would not catch other forms of subordinate legislation apart from regulations. It would not cover tertiary legislation made by non-Ministers. Arguably it does not catch tertiary regulations at all (on the basis that they are not made under the Act but are made under secondary legislation which is itself made under the Act). Where tertiary legislation is not made by statutory instrument, it evades the publication and laying requirements of the Statutory Instruments Act 1946. Despite its greater inaccessibility, tertiary legislation is still the law.

28.  The delegated powers memorandum suggests that the power to make tertiary legislation is intended to be used sparingly, where it is appropriate for powers to be conferred independently of political control, for example, conferring powers on a regulator to set standards. However, there is nothing in the Bill that limits the power in this way. It could be used for any purpose for which regulations may be made under clause 7. It could, for example, be used to create new bodies with wide powers to legislate in one of the many areas currently governed by EU law, including aviation, banking, investment services, chemicals and medicines. The regulations might also contain only skeleton provisions in relation to a particular activity, leaving the detailed regime to be set out in tertiary legislation made not by Parliament, or even by Ministers, but by one of the new bodies so created.

The committee recommends that - 
  • Tertiary legislation should be subject to the same parliamentary control and time-limits applicable to secondary legislation.

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