Lords Select Committee: Parliament not Ministers should decide level of scrutiny of Brexit secondary legislation

28 September 2017

The House of Lords Delegated Powers and Regulatory Reform Committee has published its first report on the European Union (Withdrawal) Bill.

Content of the Report

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. 
• 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.

DPRRC 3rd Report, Session 2017-19 (HL Paper 22) (PDF)

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