Wednesday 6 September 2017

Massive powers for Ministers under the EU (Withdrawal) Bill

I recall a thinly attended "Constitutional Law" lecture held on a chilly winter's day almost 50 years ago.  The lecturer, a pleasant and elderly gentleman, turned to "Delegated Legislation."  Here was a topic guaranteed to make even the brightest of young eyes glaze over or, as some did, skip the lecture and head for the bar!

The little we needed to learn about Delegated Legislation in order to pass the subsequent constitutional law examination could have been written easily on a single side of Foolscap Folio paper and copied using a Gestetner machine.  Acts of Parliament quite often granted powers to Ministers to legislate.  These "delegated powers" left it to Ministers to do lots of seemingly harmless things such as to decide when sections of the Act came into force and fill in the extensive detail needed to implement the Act.  Occasionally,
a delegated power might even permit the Minister to amend an Act of Parliament but, it was said, this "Henry VIII power" made only a very exceptional appearance.  Our lecturer explained that various "controls" existed.  The Minister had to keep strictly within the power granted by the Act of Parliament and the courts could ensure that this was done.  Also, Ministers had to present their planned legislation to Parliament and it could be stopped in its tracks if certain procedures were invoked.  We could read up on those mysterious procedures in the textbook!  The lecturer also added that it was likely that the use of delegated legislation would grow in the future and that existing procedures in Parliament might not be good enough to keep it properly reviewed. That prescient comment came back to me as I looked at the European Union (Withdrawal) Bill which contains some 14 provisions enabling Ministers to legislate.

Moving on to 2010, Lord Judge (then Lord Chief Justice) spoke at The Mansion House, London and expressed serious concern at the extensive and growing use of Henry VIII powers  - Lord Judge's 2010 speech may be read here and Joshua Rozenberg published an article about it in The Guardian 15th July 2010.   Lord Judge renewed his attack on such powers in a speech at King's College London on 12th April 2016 where he said - "Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self-inflicted blow, each one boosting the power of the executive. Is that what we want? Is that how our constitutional arrangements must continue to develop? Should we allow the powers of the executive to increase and the sovereignty of Parliament to be diminished?"

His Lordship asked fair questions which have not received answers from Ministers.  Even Parliament itself has looked at the powers but nothing major has been done to alter things - e.g. House of Lords Delegated Powers and Regulatory Committee - 3rd report of session 2012-13  and, in the context of what was then referred to as "The Great Repeal Bill" there is the House of Lords Constitution Committee - 9th report 2016-17  and also see this previous post.   The Constitution Committee called for any powers to be carefully limited and they suggested a system of enhanced scrutiny but this has not been adopted in the European Union (Withdrawal) Bill.

The European Union (Withdrawal) Bill contains 14 distinct powers enabling Ministers to make legislation and there are Henry VIII clauses - see, for instance, Clause 7(4) subject to exceptions in Clause 7(6); Clause 8(2) but see 8(3) and Clause 9(2) - also see 9(3).  The full list of the powers is set out in a Delegated Powers Memorandum:

The government (unsurprisingly) claims that the delegated powers are necessary to deal with the detail involved in a timely implementation of Brexit and to create legal continuity.  In fairness, it is difficult to see an alternative.  The focus of concern is on the way in which Parliament exercises scrutiny over delegated powers as opposed to the actual need for the powers   The Bill will bring EU law, as it exists on Exit Day, into domestic law and the powers granted to Ministers will, with some exceptions, enable them to alter the law afterwards and they will be able to do so extensively.  The problem is how  might Ministers actually exercise those powers?  For example, would Ministers seek to reduce protection for workers or the environment?

Writing in The Guardian 6th September, Rafael Behr comments that - "The bill assembles an edifice of regulations amounting to the biggest peacetime transfer of power from the legislature to the executive in living memory. There are a handful of limitations: on making new criminal offences and raising taxes, for example.  But as far as most statute is concerned, it is open season – a blank canvas for ministers to daub the post-Brexit landscape in colours to match their ideological taste. They can paint over rules governing anything from the quality of the food we eat and the air we breathe to the rights we have at work."

The government will no doubt ask that Ministers be trusted and there may be sweet whispers that nothing nasty will be done but Rafael Behr is surely right to point out that vast powers should not be granted on the basis of blind faith that ministers will use them modestly.  Scrutiny and control are required and that is a key role of Parliament.

Interestingly, the Hansard Society has put forward a proposal to alter the way Parliament scrutinises uses of delegated power under the Withdrawal Bill - Hansard Society A Parliamentary Scrutiny Solution for the EU (Withdrawal) Bill.

The Society proposal notes that the Withdrawal Bill raises an important issue about the relationship between the executive and the legislature.  There is a "toxic mix" for Parliament and the balance of power and the balance must be redressed in Parliament's favour.

The proposal has 3 parts:

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

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

3.  A new House of Commons 'sift and scrutiny' system - with a dedicated Delegated Legislation Scrutiny Committee - should be established for all delegated legislation.

If the political will exists, the Hansard Society’s proposed new system could be in place for Spring 2018, ready for the emergence of the first Statutory Instruments under the EU (Withdrawal) Bill after it receives Royal Assent.

Delegated legislation is a long standing concern and it ought to be addressed.  For the years 2010 to 2016, some 19,503 Statutory Instruments were made - HERE.  The Withdrawal Bill provides a good opportunity for Parliament to improve its scrutiny processes.  The opportunity ought to be taken.

Perhaps my long ago attendance at the lecture was not entirely wasted.  Our old lecturer highlighted the problem of scrutiny and today it is manifesting itself in spectacular fashion.  Parliament will seriously abrogate its role if it simply grants the powers asked for in the Withdrawal Bill without ensuring that scrutiny processes are up to the task.  It is to be hoped that parliamentarians see this problem and address it with some urgency.

Previous post:

The EU Collection - links to all previous posts relating to Brexit

Lord Judge - Ceding power to the executive

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