Lords reject ministers' approach to EU Withdrawal Bill scrutiny
The European Union (Withdrawal) Bill gives ministers "excessively wide" lawmaking powers, the scrutiny of which should in any event be decided on by a special parliamentary committee, a House of Lords committee reported today.
In its first report on the bill, the Delegated Powers & Regulatory Reform Committee concludes that 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, the peers state, and in no circumstances should fees and charges be levied by tertiary legislation – law made by public bodies under powers conferred on them by ministers in regulations.
Further, whatever powers the Government decides 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.
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, it 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.
Legislation subject to the affirmative procedure does not become law until both Houses of Parliament have agreed it, whereas an instrument subject to the negative procedure automatically becomes 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.
Lord Blencathra, chairman of the committee commented: “We have put forward what we think is a sensible proposal which will enable the Government to use secondary legislation to implement the decision to withdraw from the EU whilst ensuring that it is Parliament – not the Government – which decides the level of scrutiny applied to that legislation."
The proposed committee, including the 10 day timeframe to make a decision, "would allow the Government to move the legislative process forward at an appropriate pace while ensuring Parliament is not overlooked or ignored".
He added: “In examining the European Union (Withdrawal) Bill, we took the view that it was important to maintain the same objective standard in assessing the powers in this bill as we have done with all previous bills, and that we should not treat the powers in the bill differently simply because of the unprecedented circumstances with which the country is now faced. To do so would involve a political judgment which should rest with Parliament as a whole. It is for this reason that we have proposed a sifting mechanism so that members in both Houses can apply their political judgment by exercising the power to decide which instruments should be subjected to the more robust scrutiny of the affirmative resolution procedure and which can be adequately dealt with by the negative procedure.
“We are confident that the Government will wish to take our suggestion on board and work with the other parties in Parliament to establish a mechanism of this kind.”