The Procedural Problems with the EU (Withdrawal) Bill
This is the third in my series of posts on the EU (Withdrawal) Bill. The introduction to the series is here. The first post, on the conceptual problems with the Bill, is here. The second post, which focuses on substantive problems, can be found here.
What I refer to as procedural problems are essentially shortcomings in the provision the Bill makes for scrutiny of the powers it creates. These fall under two sub-headings: the failure to provide for a sifting procedure and the inadequate tailoring of scrutiny mechanisms.
This post will be shorter than its two predecessors, in no small part because much of the ground has already been covered by the Hansard Society in a magisterial report entitled Taking Back Control, which uses the Bill as a springboard for a detailed discussion of Westminster’s inadequate procedures for scrutinising delegated legislation.
Many of the procedural problems, moreover, are consequential upon the conceptual and substantive problems outlined in my previous posts. For instance, if the contours of the concept of “retained EU law” are not clear, the difficulty of creating mechanisms to scrutinise it will inevitably be greater. Similarly, if the Bill does not adequately distinguish, as a substantive matter, between technical issues apt to be dealt with by regulations and policy questions that must be reserved to Parliament, the scrutiny mechanisms are likely to be mismatched. However, procedures can be designed to address the conceptual and substantive problems; well-designed procedures might even resolve them. Indeed, I will end this post, and thus the series, on a relatively positive note.
Parliament is likely to be deluged with delegated legislation to provide for Brexit, introduced under clauses 7-9 of the Bill. Some of these instruments will be unobjectionable: changing definitions because the United Kingdom will no longer be a Member State of the European Union, for instance. But others might raise important policy questions: where, for example, powers are transferred from European institutions to new domestic institutions, the case for scrutiny by elected representatives will be much stronger.
As a starting point, therefore, it is necessary to have a screening, or “sifting” procedure for separating technical issues that do not require discussion, debate and deliberation from those that do. The experience of the House of Commons Scrutiny Committee, responsible for sifting European-law norms, is instructive. It has developed a methodology for distinguishing policy matters from technical matters:
As a Committee we consider at least a summary of all of the 1,000 documents or so deposited each year. We decide:
whether the document is legally and/or politically important (in which case it will be the subject of a chapter of our weekly Report);
whether it should be cleared or held under scrutiny, with further information requested of the Government;
whether it should be recommended for debate, either in European Committee (directly referred by the ESC) or on the floor of the House (if the Government so agrees); or
whether its relative unimportance means it can be cleared without a substantive Report (Reforming the European Scrutiny System in the House of Commons, 24th Report 2013-14, HC 109, see especially here).
Building on this model, the Hansard Society has proposed a Delegated Legislation Scrutiny Committee which would sift delegated legislation and (p. 41) “turn over to the whole House for further consideration those SIs of concern”.
The Hansard Society’s proposals go beyond the Bill and aim to improve parliamentary scrutiny of delegated legislation generally. Implementing them would require a variety of measures. Making provision for a sifting procedure in the Bill would represent a good start.
Inadequately Tailored Scrutiny Mechanisms
There are a variety of scrutiny mechanisms for delegated legislation. The most common are, of course, the negative resolution procedure, pursuant to which delegated legislation takes effect unless annulled by resolution within a fixed time period, and the affirmative resolution procedure, where approval by resolution is a pre-condition for the effectiveness of delegated legislation. There are many other variants: see, e.g. Public Bodies Act 2011, s. 11; Legislative and Regulatory Reform Act 2006, ss. 12-18.
The scrutiny mechanisms for the Bill are contained in Schedule 7, Parts 1 and 2. The provisions therein are difficult to summarise concisely, but it is fair to say that the default scrutiny mechanism is the negative resolution procedure (see Schedule 7, Part 1, para. 1(3) and Part 2, paras. 5(3), 6(3) and 7(3)). The affirmative resolution procedure is prescribed on occasion (see e.g. Schedule 7, Part 2, para. 8) but in general is reserved for regulations containing a provision that:
(a) establishes a public authority in the United Kingdom,(b) provides for any function of an EU entity or public authority in a member State to be exercisable instead by a public authority in the United Kingdom established by regulations under section 7, 8 or 9 or Schedule 2,(c) provides for any function of an EU entity or public authority in a member State of making an instrument of a legislative character to be exercisable instead by a public authority in the United Kingdom,(d) imposes, or otherwise relates to, a fee in respect of a function exercisable by a public authority in the United Kingdom,(e) creates, or widens the scope of, a criminal offence, or(f) creates or amends a power to legislate (see variously Schedule 7, Part 1, para. 1(2), Part 2, para. 5(2) and para. 6(2).
It would also be possible to provide for a sliding scale of scrutiny procedures. Sections 16-18 of the Legislative and Regulatory Reform Act 2006 are instructive: they create a negative resolution procedure, an affirmative resolution procedure and a super-affirmative resolution procedure, designed to calibrate the intensity of parliamentary scrutiny to the importance of the proposed regulations. These procedures might be unduly onerous in the context of a Bill that will lead to a torrent of delegated legislation, but the idea of a sliding scale, especially when married to sifting and certification procedures, is an attractive one that would go a long way towards resolving the substantive problems with the Bill. Taken together, a sift-certification-sliding scale package would represent a powerful response to concerns about the scope of the powers granted to ministers and the balance between legislative and executive authority.
Finally, and continuing in the same spirit, procedural measures could be used to address some of the conceptual concerns. Take devolution, for instance. If it is not possible to produce a Bill which is underpinned by a coherent conception of devolution, procedures could be put in place to enhance cooperation between Westminster and the devolved governments. The provisions in Schedule 2, which allow UK ministers and devolved authorities to act jointly, are promising. But more could be done. As the Scottish and Welsh governments have proposed:
As currently drafted, UK Ministers’ powers to make statutory instruments under clauses 7 to 9 of the Bill could be used to make provision in policy areas which are the responsibility of Scottish or Welsh Ministers. The Scottish Government and Welsh Government acknowledge that there may be circumstances justifying amendments to laws in devolved areas being made on a UK-wide basis, but they consider that this should only be possible with the consent of the devolved administrations
The effect of this proposal would be to ensure that the concerns of the devolved administrations would be taken into account by British ministers — they would have to be, for otherwise consent would be withheld. Unlike with legislative consent motions, which lie in a legally unenforceable area of constitutional convention, a failure to seek and obtain consent from the devolved administrations would be fatal to the vires of the measures proposed.
So all is not yet lost. Even with its conceptual, substantive and procedural problems, the Bill is not necessarily beyond redemption. Committee stage will be worth following closely.
This content has been updated on September 28, 2017 at 10:49.