07 March 2017

Lords' Constitution Committee: 'Great Repeal Bill' should not be used to avoid parliamentary scrutiny

The Committee's report argues that Parliament should make sure the Government does not use delegated powers in the forthcoming ‘Great Repeal Bill’ as a way of changing the law in areas currently governed by the EU, without proper parliamentary scrutiny.

Delegated powers and Brexit

The Committee considers that, given the deadlines imposed by the timing of the UK’s exit from the EU, the Bill is likely to include wide-ranging delegated powers. These will permit the Government to make a broad range of changes via secondary legislation to the body of EU law in preparation for its conversion into UK law. These powers will be required both because of the sheer number of changes required and the uncertainty as to what exactly the process of converting EU law into UK law will eventually entail. The Government will also need to be able to amend that law at short notice to take account of the outcome of Brexit negotiations.

A short-cut to pick and choose EU law?

The Committee draws a distinction between, firstly, the conversion of EU law into UK law, a process which will be facilitated by the ‘Great Repeal Bill’, and, secondly, a subsequent discretionary process in which the Government and Parliament choose which bits of EU law to keep and which to replace or modify. The ‘Great Repeal Bill’ should not be used as a shortcut by the Government to pick and choose which provisions of EU law it wishes to keep and which to lose. If the Government wants to change the law in areas which currently fall under the authority of EU as, just to give one example, it has said it intends to do on immigration, it should do so via primary legislation which is subject to full Parliamentary scrutiny.

Committee recommendations

The Committee argues that Parliament should seek to limit the scope of the delegated powers contained in the Bill, and develop several new processes within Parliament to ensure that the Government is using the delegated powers it acquires under the Bill appropriately.

Firstly, the report states that Parliament should limit the scope of delegated powers in the ‘Great Repeal Bill’ so that they can be used only:

• so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and
• so far as necessary to implement the result of the UK’s negotiations with the EU.

Secondly, the Committee recommends that enhanced scrutiny processes should be created for secondary legislation laid under the ‘Great Repeal Bill’. These include, among others, a requirement that a Minister sign a declaration in respect of each statutory instrument affirming that it does no more than necessary to translate EU law into UK law. In addition, the Explanatory Memorandum accompanying each instrument should explain what the EU law in question currently does, the effect of any amendment and why such amendment is necessary. This will allow Parliament to have a proper say on this important legislation, rather than simply being limited to approving or rejecting it as is now the case.

Full report

© House of Lords