Guarantees made to parliament on the EU withdrawal bill must be respected, says the chair of the Lords constitution committeeby / October 9, 2018 / Leave a comment
In the coming weeks the Brexit process will come to a head. Assuming the prime minister can agree a deal with the European Union, she will return to parliament, to give MPs a “meaningful vote” on the withdrawal agreement and political declaration for the future relationship. The pressure to make the meaningful vote a legal requirement was, unsurprisingly, the most contentious issue during parliament’s consideration of the European Union (Withdrawal) Bill, with ping-pong between the Commons and Lords required to reconcile the differences between ministers and their opponents in both Houses.
Less high-profile, but also of significant importance, were the arguments about the delegated powers the government wanted in the Withdrawal Bill. Delegated powers are the powers provided in a Bill that, following its enactment, the government can deploy to fill in the technical details to implement the policy. On the whole, government enjoys the flexibility delegated powers provide, while parliament can be reluctant to grant ministers such leeway, because they are subject to only limited parliamentary oversight.
The government wanted—and needed—broad powers to ensure a smooth transition in the UK’s laws before and after exit day. Some existing UK law that would cease to function after Brexit needed to be preserved and EU law had to be copied on to our statute book to ensure continuity and legal certainty. These laws then need to be amended so that they still operate when our membership of the EU ends. However, the scope of the powers the government sought was extremely wide, potentially allowing for all kinds of policy decisions to be made through secondary legislation, which is subject to much less parliamentary scrutiny than bills. So-called “Henry VIII powers” permit the government to make changes to Acts of Parliament using statutory instruments.
The committee that I chair, the House of Lords Constitution Committee, raised serious concerns about these powers. We argued that, while the government could reasonably expect more latitude than the norm given the circumstances of Brexit, the Bill went beyond what was constitutionally acceptable. The prospect of between 800 and 1,000 pieces of secondary legislation being introduced using these broad Henry VIII powers presented a fundamental challenge to parliament’s scrutiny. We concluded that the Bill “raised a series of profound, wide-ranging and interlocking constitutional concerns.”
One of the concessions made by the government in order to allow these powers to pass was an agreement that both Houses would appoint select committees to sift the secondary legislation that followed from the European Union (Withdrawal) Act. These committees—the new European Statutory Instruments Committee in the Commons, and the strengthened Secondary Legislation Scrutiny Committee in the Lords—would have the power to “upgrade” the scrutiny of those bits of secondary legislation that needed more attention.
Parliament fought hard for this victory, but with the sifting process only just started, it is already looking like it may unravel.
The government can ignore recommendations made by the sifting committees, but ministers assured parliament that there would be a “political cost which will be significant” to do so. However, the government appears to be backtracking on this commitment, suggesting that the reasons for disagreeing with the sifting committee will be published only after the secondary legislation has been made law—too late for MPs or peers to reverse. This move would dramatically hinder parliament’s ability to hold the government to account. The chair of the Procedure Committee in the Commons, Conservative MP Charles Walker, has said, “we do not see how this arrangement meets the widely-held expectation of a political cost to the government from disagreement” and “it is discourteous to present a [sifting] committee with a fait accompli.”
Parliament only gave its consent for government to use these broader-than-normal delegated powers for the exceptional circumstances presented by Brexit. The quid pro quo was that parliament would be able to scrutinise these powers effectively, with the sifting committees acting as an important safeguard against executive overreach.
The government must respect the assurances given during the passage of the legislation and should not fear proper parliamentary scrutiny of its proposed secondary legislation. My committee and other parliamentarians will continue to hold the government’s feet to the fire on this and other areas where constitutional norms and expectations should be respected.
The government may be nervous about the meaningful vote ahead, but it ought to feel more than a little uncomfortable about backtracking on commitments made to parliament.