The government heralds its proposed ‘Great Repeal Bill’ as the Bill to ‘give Parliament its sovereignty back’ upon Brexit. In reality, it will most probably ask Parliament to hand over a very large blank cheque for ministers to legislate by diktat, driving a coach and horses through the principle of parliamentary government. If Parliamentarians wish to avoid another ‘Abolition of Parliament Bill’ they must finally engage with and remedy the many deficiencies within the delegated legislation process.
Four months on from the country’s historic vote to leave the European Union, a picture is starting to emerge about how the government intends to realise Brexit. But this picture sees a minimal role for Parliament in the Brexit process. This is encapsulated by the proposed ‘Great Repeal Bill’, to be included in the 2017 Queen’s Speech, repealing the European Communities Acts 1972 on Brexit day, ending the primacy of EU law in the UK.
Rather than repealing any law, the Bill will convert existing EU law into domestic law on Brexit day. Sensibly, this approach provides more time for Parliament to undertake the enormously challenging task of reviewing the large corpus of EU law to determine what should be kept, amended, or removed, a process described by former parliamentary counsel Daniel Greenberg as “the largest scale legislation and policy exercise that has ever been carried out”.1
Brexit and delegated legislation
But how much of this process will actually involve Parliament? In an earlier blog post we stated that, given the volume of legislation involved, in practice much of this heavy lifting will probably have to be done via delegation through statutory instruments (SIs). The government confirmed as much in stating that the Bill will include powers for ministers to make ‘some’ changes via delegated legislation.
Traditionally, the justifications for using delegated legislation have been the need to elaborate complex and technical detail that cannot be easily done on the face of a Bill; the need for flexibility and adaptability; the advantage of involving external expertise; and the capacity to act quickly in times of crisis and emergency. Based on these criteria, the reliance on delegated legislation to implement the review of EU law would be justified. Crucially however, the acceptance of the system of delegated legislation has been predicated on its reasonable use and application by ministers coupled with trust in Parliament’s system of scrutiny. On both these counts the proposed Great Repeal Bill is problematic.
As noted in our 2014 publication, The Devil is in the Detail: Parliament and Delegated Legislation, there is no longer trust in Parliament’s ability to constrain the executive’s dominance of the delegated legislation system because the procedures for parliamentary scrutiny of statutory instruments, particularly in the House of Commons, are utterly inadequate. Along with weak procedures, the scrutiny process has become so unnecessarily complex that most MPs simply don’t understand it and coupled with the fact that Parliament does not currently hold the power of amendment, MPs’ engagement in the scrutiny process is poor.
The Devil is in the Detail: Parliament and Delegated Legislation
£20 inc. P&P (240 pages)
Henry VIII powers
These scrutiny inadequacies are all the more significant given that it is extremely likely that the Great Repeal Bill will include powers for ministers to amend and repeal primary legislation by SI – also known as Henry VIII powers.
Delegated legislation was once used only for matters that were technical or inconsequential and very procedural in character. However, successive governments have increasingly gone beyond the boundary of reasonableness and acceptability in their use of delegated legislation. Any distinguishing line between legislative principle and detail has long since been obscured. There has been such an expansion in the scope and application of powers that a precedent could arguably be found to justify almost any form of delegation a minister might now desire.
In recent years increasing concern has been expressed over the continued delegation of Henry VIII powers by Parliament to ministers to amend or repeal primary legislation by SI, with little or no scrutiny, not least because it undermines the constitutional principle that Parliament is the sole legislative authority with the power to create, amend or repeal any law. Former Chief Justice Lord Judge has been a leading voice in denouncing the ‘pernicious habit’ of successive governments in claiming such powers and in a series of hard-hitting speeches has called on Henry VIII clauses to be condemned to the ‘dustbin of history’.
A second ‘Abolition of Parliament Bill’?
While we still await the final detail of the Great Repeal Bill, the nature of the legislative task it is designed to undertake, and the rhetoric used by the government thus far all point in the direction of it including a number of very broad Henry VIII powers. Notably, the wording used in the government’s press release that the Bill will allow Parliament to ‘amend, repeal or improve any law’ invokes memories of the widely criticised 2006 Legislative and Regulatory Reform Bill, dubbed on its introduction as the ‘abolition of Parliament Bill’ and ‘the bill to end all bills’. Much will depend on how the Bill is drafted but already vague words being bandied around like ‘improve’ any law should alert parliamentarians to the dangers of granting ministers poorly defined powers that enable them to decide whatever they wish it to mean. Rather than restore parliamentary sovereignty, the Great Repeal Bill could amount to nothing more than government by ministerial diktat, providing a blank cheque for ministers to legislate with limited oversight by Parliament.
This is not scaremongering for successive governments have form in this area. Skeleton Bills such as the Legislative and Regulatory Reform Bill, where the majority of the legislative content is left to delegated legislation, are now a regular feature of the legislative process and in recent years ministers have sought generalised powers by delegated legislation to repeal legislation deemed to be ‘no longer of practical use’, and to make provisions with retrospective effect if they ‘consider it necessary or desirable’. Such wording hands ministers scope for elastic interpretation.
Appropriate scrutiny and debate?
The government has indicated that any changes to law under the Great Repeal Bill will be afforded ‘appropriate scrutiny and debate’. Parliament will have a role in deciding which scrutiny procedure is most ‘appropriate’. Strengthened scrutiny procedures, usually reserved for delegated powers that amend primary legislation, are currently the most stringent form of parliamentary control available to MPs and peers.
There are 11 types of strengthened scrutiny procedure, each one a little different from the other, adding another layer of complexity to an already overly-complex process. They rarely reflect the substance of the power delegated within the Bill. These strengthened procedures share a number of common features including a requirement to consult and committee involvement in both Houses. The process by which scrutiny procedures are assigned to delegated powers is far from perfect. They are often bartering chips used by the government to buy off opposition, particularly to avoid conceding a power of veto to a scrutiny committee during a bill’s passage. At present only two statutes provide a veto power: the Legislative and Regulatory Reform Act 2006 and the Localism Act 2011.
Given the historic nature of the legislative exercise that the Great Repeal Bill will embody, it is not unreasonable to think that it may require the creation of a new 12th scrutiny procedure and that Parliament might wish to insist on a veto power in order to constrain the executive. If strengthened scrutiny was needed for the Public Bodies Bill and the Localism Bill in the last Parliament then why not for the Great Repeal Bill in this one?
However, again the Legislative and Regulatory Reform Act stands as a salutary lesson. Given the broad, unconfined nature of the powers sought by ministers in the original bill, Parliament insisted on constraining them through new Legislative Reform Orders. But it can take between 11 and 18 months to complete a Legislative Reform Order, negating the advantages of legislating with speed and flexibility rather than putting the matters on the face of the Bill. As a result, only 31 Legislative Reform Orders have been laid since the legislation received achieved Royal Assent in 2006. Given the scale of the legislative exercise now facing Parliament as a result of Brexit, it is hard to imagine that this route will therefore offer a viable solution to the problem. But at present, the only alternatives are the less stringent processes afforded to powers subject to the negative or affirmative scrutiny procedures both of which generally favour the executive. In short, neither scrutiny approach is satisfactory at the best of times, but it will certainly not meet the needs of the Brexit legislative overhaul.
In recent weeks, a few backbenchers have called for the Great Repeal Bill to be published in draft subjecting it to pre-legislative scrutiny. This certainly benefitted the draft Deregulation Bill 2013 when, in response to the Bill’s Joint Committee recommendations, the government removed entirely from the Bill the power to repeal legislation ‘of no practical use’.
But there is an opportunity here to address the wider problems inherent in the delegated legislation process, particularly in regard to scrutiny procedures. Arguably, there may never be a better time to do so.
Up until now, the complexity of the delegated legislation process, the lack of understanding amongst parliamentarians and the sheer scale of its problems has led to inertia. Parliamentarians, particularly MPs, have been both unwilling and unable to engage with the delegated legislation process and confront its many problems head on. But Brexit is now the defining issue facing the UK and delegated legislation will play a big role in the Brexit Process.
Advocates of leave campaigned ostensibly to restore the influence of Parliament, but if they fail to take note of the inadequacies of the delegated legislation process, the government not the legislature will be empowered by Brexit. Bluntly, if Brexit and the Great Repeal Bill can’t finally engage MPs with the delegated legislation process, what will?
Where could parliamentarians start? The recently announced year-long House of Lords Constitution Committee inquiry into the legislative process is a welcome step, but its remit is perhaps too broad to address the problems with the delegated legislation process in great detail. Also, many of the inadequacies are Commons related, and the Lords may be, quite understandably, unwilling to comment on the Lower House’s procedures. The Commons Procedure Committee initiated an inquiry into delegated legislation in the last Parliament but made little headway before the last election.
Given the scale and complexity of the legislative demands that Brexit will impose, a fresh look at the system is needed. If we had a blank sheet of paper, no sane person would design the scrutiny system we now have. Brexit should be the trigger for a complete overhaul.
A Joint Committee of both Houses would be one option, enabling any review to consider the complementary roles and experience of both Houses. Thinking radically, a joint Commission under the auspices of the Speakers in both Houses might make some headway. An independent inquiry, involving outside experts who can bring fresh ideas and perspectives would be another route.
If nothing is done then parliamentarians will be acquiescent in empowering the government at the expense of the legislature and according ministers ‘despotic’ powers to determine the future content of the statute book untroubled by the inconvenience of detailed scrutiny.
D. Greenberg, ‘Brexit: a Parliamentary Counsel's view’ – Practical Law [accessed 10 Oct 2016] ↩