The House of Lords Delegated Powers and Regulatory Reform Committee has published a report on the European Union (Withdrawal) Bill. The report focuses on the Bill's provisions for secondary legislation and warns against giving Ministers “unfettered discretion” and “excessively wide legislative powers”. In particular, the Report criticises the scope of powers granted by clauses 7-9 and 17 of the Bill, which were discussed in our previous blog.

The Bill provides for so-called Henry VIII powers, which empower the Government to introduce secondary legislation to amend primary and secondary legislation for the purposes of making it fit for purpose post-Brexit but without the usual level of Parliamentary scrutiny.

Clauses 7-9 grant Government the power to make secondary legislation for specified purposes such as dealing with deficiencies in retained EU law arising from withdrawal. A more general power provided for by clause 17 empowers Ministers to make such provision as "the Minister considers appropriate in consequence of the Act".

The Committee's report concludes that these powers are "unacceptably wide" and subject to insufficient Parliamentary scrutiny. It also suggests that no convincing justification has been given for the inclusion of clause 17 as it is unclear why powers beyond those set out in clauses 7 to 9, which are limited by purpose, are required.

The report makes a number of recommendations to ensure that the correct balance is struck between the "scrutiny requirements of Parliament and the business needs of the Government."

The powers in clauses 7-9 and 17 should only be exercised "where necessary" rather than "where appropriate"

The report proposes that the test for the application of the powers in clauses 7-9 and 17 should be whether remedial action is objectively necessary rather than whether the Minister thinks it subjectively appropriate.

One problem posed by a subjective test of appropriateness, which the Committee's report does not discuss, is that such a test requires a court interpreting the scope of the powers to make a somewhat political decision regarding the appropriateness of a Minister's policy decision. Courts would likely be more comfortable applying a test of necessity, which is a threshold more familiar to judges and more amenable to legal rather than political analysis.

Tertiary legislation should be subject to the same parliamentary scrutiny applicable to secondary legislation

Under clause 7 of the Bill, Ministers can undertake "legislative sub-delegation" whereby the power to make tertiary legislation is delegated to another person without any provision for Parliamentary scrutiny. For example, a Minister could confer on a regulator to set standards in a certain industry. As currently formulated, the Bill could allow tertiary legislation to be used to create a new body with wide powers to legislate in an area currently governed by EU law, such as medicines or aviation.

The Department for Exiting the EU has produced a memorandum suggesting that the power to make tertiary legislation is intended to be used sparingly; however, there is nothing in the Bill to ensure that this is the case. The proposed sub-delegation of law-making powers to public authorities by way of statutory instruments is profound and unprecedented. Given the potential for these sweeping powers to significantly change regulatory frameworks across various sectors without any Parliamentary oversight, the Committee makes a prudent recommendation that any tertiary legislation introduced pursuant to regulations made under the Withdrawal Act should be subject to the same Parliamentary control and time-limits as those applicable to secondary legislation.

Ministers should not be able to amend or repeal the Withdrawal Act itself by statutory instrument

Clause 9 allows Ministers to make such statutory instruments as they consider appropriate for the purposes of implementing the withdrawal agreement, including amendment of the Withdrawal Act itself. The Committee proposes that amendment of the Withdrawal Act should only be done by primary legislation.

Ministers should not have an unfettered choice to apply the negative or affirmative procedure for SIs made under clause 7 to 9 and 17

Schedule 7 of the Bill sets out the parliamentary scrutiny procedures for regulations made under the Bill. Under the affirmative procedure, an instrument is laid before Parliament in draft and must be approved by both Houses before it may be made. Where there is particular urgency for an instrument to come into effect, the made affirmative procedure can be used, whereby an instrument may be made by a Minister before it is laid before Parliament, but must be approved within a specified period in order to continue in force. Under the negative procedure, a statutory instrument is laid before both Houses after it has been made after which either House has 40 days to pass a motion that the instrument be annulled.

The Bill, in its current form, gives Ministers, rather than Parliament, the final say on which procedure is appropriate. By contrast, the Committee's report proposes a sifting mechanism whereby a Parliamentary committee has 10 days in which to recommend the affirmative procedure if a Minister proposes that the negative procedure should be used.

Conclusions

The report demonstrates that, while the principle of the Bill is relatively uncontroversial, the approach it currently takes towards the balance of power between Parliament and Government will be the subject of widespread and vigorous criticism during its passage through both chambers of Parliament.