Briefing by the Brexit Civil Society Alliance. Read PDF version here (include footnotes).
Executive Summary
The sovereignty of Parliament was a central theme in the EU referendum and a promise was made that Parliament would ‘take back control of our own laws’. Yet, several pieces of Brexit legislation show that control of lawmaking will not rest with Parliament after we leave the EU. Instead, the executive and ministers have been given unprecedented powers to change laws, without proper parliamentary scrutiny. This undermines both parliamentary sovereignty and accountable law making.
It is therefore essential that the use of delegated powers is subject to the highest level of parliamentary scrutiny.
The delegated powers in Brexit legislation
The government has so far announced a total of 12 Brexit bills. Some cover areas where significant policy changes are expected (agriculture and fisheries) or areas that were previously governed by the EU (customs or trade). The bills that have either received Royal Assent or are currently being debated in Parliament all contain delegated powers, many of which are Henry VIII powers (see Annex 1).
It’s alarming that the government has handed such exceptionally broad powers to ministers in every piece of Brexit legislation introduced to Parliament. It is setting a dangerous precedent and risk undermining the principle of parliamentary sovereignty. Fundamental rights and standards are under threat as a result of the wide scope of many of the delegated powers in Brexit bills.
The government justifies the widespread use of delegated powers in Brexit bills because the outcome of negotiations are not yet known and flexibility is needed to make new laws and enable new regimes to be created at short notice. However the need for flexibility and speed does not justify cutting corners of parliamentary scrutiny, nor does it justify handing ministers extraordinary lawmaking powers that can be used remove existing rights or obligations. There have been opportunities for the government to combine the necessary speed with improved scrutiny. They have chosen not to take them.
A clear need for Parliamentary scrutiny of delegated legislation
These extraordinary exercises of executive power must be subject to the highest level of parliamentary scrutiny. However, the current scrutiny system of delegated powers is not fit for purpose and does not provide for proper parliamentary control of delegated legislation.
Henry VIII powers: ceding more powers to the executive
Henry VIII powers, one type of delegated power, allow ministers to amend or repeal primary legislation without going through the process of creating a new Act of Parliament that can be scrutinised by parliamentarians. This leaves open the possibility that Henry VIII powers handed to ministers may be used to amend acts such as the Equality Act 2010, the Data Protection Act 2018 and the Modern Slavery Act 2015, without MPs having a proper say in the matter.
Delegated powers are meant to make technical or administrative changes. However, increasingly such powers have seeped into policy areas as seen when delegated powers were used to abolish maintenance grants, change voter registration and allow fracking in national parks.
Statutory instruments- a ‘take it or leave it’ option
The most common form of delegated legislation is known as statutory instruments (SIs). MPs have very little role in scrutinising SIs. They can't be amended and are only very rarely rejected even when there is significant opposition.
A negative statutory instrument (the most commons form) will become law unless it is ‘prayed’ against and it is up to the government to allocate time for debating objections to negative SIs. An SI upgraded to the affirmative procedure will be subject to a debate in a Delegated Legislation Committee. Historically the quality of these debates has been affected by the fact that MPs are often appointed at a relatively short notice; lack briefing material and time to engage in detailed analysis. In addition, MPs are not able to amend an SI but are instead faced with a ‘take-it-leave-it’ choice when debating an SI. As the Constitution Committee noted in its report on the delegation of powers: ‘without genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation’.
Although a new sifting committee has been created for some Brexit SIs this does not solve the problem as the scrutiny procedure has not been changed. So once an SI has been sifted it goes through exactly the same flawed system.
Transparent lawmaking: Parliament must be in control
It must be up to Parliament, not the government to decide what level of scrutiny delegated legislation is subject to. We call on MPs to vote in favour of amendments to Brexit bills that:
a) Put clear limits and safeguards on what delegated powers can be used for. The Government should set out the specific purpose of delegated powers and how it will be used- broad powers in Brexit bills cannot be justified solely on the ground of the need for flexibility and speed.
b) Offer proper parliamentary scrutiny of delegated powers- parliamentary control of delegated legislation should ultimately be decided by Parliament.
The European Statutory Instrument Committee (ESIC) has been established to sift through proposed negative statutory instruments made under the EU Withdrawal Act. While it is a considerable flaw that recommendations from the Committee is not binding upon the government, it is nevertheless necessary that ESIC or a committee of similar kind sift and scrutinise changes made via delegated powers under the Brexit bills. The Hansard Society’s proposed ‘sift and scrutiny’ system of statutory instruments include a strengthened scrutiny procedure whereby “the government is obliged to accept the recommendation of a designated committee in each House of upgrade the scrutiny of an SI”.
Conclusion
The House of Lords Delegated Powers and Regulatory Reform Committee expressed ‘dismay at the government’s approach to delegated powers in the delegated powers in the Agriculture Bill’ and described the Henry VIII powers in the EU Withdrawal Act as ‘wider then we have ever seen’. We echo these concerns and find it astonishing that the government time and time again confers wide-ranging powers on ministers, often without sunset clauses. Legislating for Brexit must respect the democratic processes. There must be clear limits and safeguards on executive power with robust parliamentary scrutiny with appropriate level of transparency and debate.
We are calling on MPs to challenge the use of delegated powers in Brexit legislation and ensure that there is proper levels of parliamentary scrutiny in place.
Annex 1:
Agriculture Bill: proposes 25 delegated powers of which five would allow ministers to modify primary legislation (so-called ‘Henry VIII powers’). These powers are exercisable indefinitely and without sunset
clauses.
Trade Bill: proposes seven delegated powers of which two are Henry VIII powers
Taxation (Cross-border Trade) Bill: proposes over 150 delegated legislative powers for ministers
The EU Withdrawal Bill (now Act): which give ministers significant delegated powers including to:
Correct any deficiencies in retained EU law as the Minister considers appropriate, including make any provision that could be made by an Act of Parliament
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of the EU Withdrawal Act
Sanctions and Anti-Money Laundering Bill (now Act): give ministers significant delegated powers including to:
to make sanctions regulations for the purpose of implementing UN and other international obligations, as well as for other purposes concerned with the prevention of terrorism, national security and furthering the UK’s foreign policy objectives.
to make regulations concerned with the detection, investigation and prevention of money laundering and terrorist financing, and implementing Standards published by the Financial Action Task Force relating to combating threats to the integrity of the international financial system
Haulage Permits and Trailer Registration Bill (now Act): contains 16 delegated powers, all of which are subject to the negative procedure
Fisheries Bill: confers 16 delegated powers to ministers