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My Lords, I declare an interest as chair of the Hansard Society, whose briefing has been very helpful in considering the Bill, as has the excellent report from the Constitution Committee. I very much look forward to seeing the imminent report of the DPRR Committee later this week. The Bill represents a massive transfer of authority away from Parliament to the Executive, and such a transfer requires proper constraint via proper parliamentary scrutiny. The question is how Parliament might best secure reasonable oversight and scrutiny of this flood of delegated legislation without frustrating the purpose of the Bill.
Previously, Parliament has insisted that a strengthened scrutiny procedure be inserted into Bills that grant Ministers wide delegated powers: the super-affirmative procedure in the case of LROs; the enhanced affirmative procedure in the case of the Public Bodies Act. There is no such procedure in the Bill, and that is a very serious defect. The Bill adds a novel procedural element to the SI process. It sets up in the Commons a sifting committee to examine all negative SIs, and it will have the power to recommend an upgrade to the affirmative procedure. It can only recommend, though, and that is not sufficient; the committee should be able to require an upgrade. We will want to address this as the Bill proceeds. The Bill contains nothing about how the sifting committee is to arrive at its decisions, and we will want to make good that lack. The Bill proposes a sifting committee only in the Commons. I was glad to hear the noble Baroness the Leader of the House promise to correct that and deliver an equivalent for this House. If a sifting committee in either House decided to upgrade an SI, that should be binding upon the Minister.
I think it is generally acknowledged that Commons scrutiny of SIs leaves much to be desired, but that scrutiny process is left unchanged by the Bill. Sifting is not scrutiny. As usual, detailed and thorough scrutiny will take place in our House, where existing procedures require us to say yes or no—we cannot amend. We will of course be reluctant to invite more visits from the noble Lord, Lord Strathclyde, by exercising frequently, or at all, what may be called the nuclear option. But we should not allow unsatisfactory SIs to grant unsatisfactory powers to the Executive. It would be better to introduce a new power to return an SI to the Commons for reconsideration—a proposal recommended by the noble Lord, Lord Strathclyde in his report.
It is not just the scrutiny procedures in the Bill that are inadequate, but their scope as well. For example, SIs generated by Clause 17 are not subject to the sifting mechanism, and they should be. There is also the Solicitor-General’s declared intention to use SIs deriving from existing non-Brexit-related Acts to make changes to retained EU law. These SIs need to be brought within the strengthened SI procedures in this Bill. There will be SIs generated by other Brexit Bills. We want all of them to be scrutinised as though they were generated by this Bill. For example, Clause 2 of the Trade Bill contains a negative procedure power to amend retained EU law where that law has the status of primary legislation. The safeguards in the EU withdrawal Bill are absent from the Trade Bill. We will want to change that.
We will also want to look at the urgency provisions in this Bill. As things stand, there are no constraints on the exercise of the “urgent case” power in Schedule 7. Under this power, Ministers can lay a made affirmative instrument which will remain in force unless annulled within a month. We understand why the urgent case power may be needed, but we will also want to understand why in each case. We will require the Minister to explain and justify the use of the urgency power. We will also need to provide safeguards on the use of this power, including defining limits on its use and perhaps involving the sifting committees.
The Bill at least contains sunset provisions. These are for the SIs themselves, not for whatever is enacted via them. It would be impractical to impose a sunset provision on these enactments, but that does not mean that they should not be reviewed. For primary legislation, the Government have to produce a report for Parliament within three to five years of royal assent. We see the case for a similar provision for legislation enacted by withdrawal-related SIs.
This Bill grants Ministers exceptional powers but does not provide for effective scrutiny. That is very dangerous for the quality of the legislation and for the authority of Parliament. I hope we will be able to reduce these dangers as the Bill progresses.