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"Exceptional scrutiny" required for Great Repeal Bill, Lords report warns

7 March 2017

New measures to safeguard the rights of Parliament as the Brexit process gets underway were proposed today by the House of Lords Constitution Committee.

A report by the committee argues that Parliament should make sure the Government does not use delegated powers in the forthcoming "Great Repeal Bill" as a way of changing the law in areas currently governed by the EU, without proper parliamentary scrutiny.

The committee, which rarely considers Government bills before they are published, considers the issues likely to be raised by the bill to be exceptional, for which exceptional scrutiny measures will be required.

It believes that, given the deadlines that will come into play, the bill is likely to include wide-ranging delegated powers, permitting the Government to make regulations in preparation for the conversion of the body of EU law into UK law. These powers will be required both because of the sheer number of changes required and the uncertainty as to what exactly the conversion process will entail. The Government will also need to be able to amend that law at short notice to take account of the outcome of Brexit negotiations.

The committee anticipates that a two stage process will come into play: first, the conversion of EU law into UK law, followed by a discretionary process in which the Government and Parliament choose which bits of EU law to keep and which to replace or modify. It warns that the Repeal Bill should not be used as a shortcut by the Government to pick and choose which provisions of EU law it wishes to keep and which to lose – if the Government wants to change the law in these areas, such as with immigration, it should do so via primary legislation which is subject to full parliamentary scrutiny.

Parliament should seek, it argues, to limit the scope of the delegated powers contained in the bill, and develop several new processes to ensure that the Government uses the delegated powers it acquires under the bill appropriately.

Enhanced scrutiny processes should include a requirement that a minister sign a declaration in respect of each statutory instrument affirming that it does no more than necessary to translate EU law into UK law. Further, the explanatory memorandum accompanying each instrument should explain what the EU law in question currently does, the effect of any amendment and why such amendment is necessary. This will allow Parliament to have a proper say on this important legislation, rather than simply being limited to approving or rejecting it as is now the case.

As regards the devolved legislatures, the report warns that given the areas of overlap between devolved and reserved competence, agreement will be needed over how to manage the new responsibilities where EU law no longer applies. It adds: "If the UK Government alone is responsible for amending the body of EU law in preparation for its transposition into UK law, it would put the accepted limitation that the Sewel convention does not apply to secondary legislation under considerable strain. This concern might be mitigated by the fact that, following the UK’s exit from the EU and once the body of EU law has been incorporated into UK law, the devolved institutions will be free to legislate within their areas of devolved competence and change whatever ‘snapshot’ of EU law is in force following Brexit. It is likely, however, that the some form of consultation or consent would be considered appropriate."

Committee chairman Lord Lang of Monkton commented: "The ‘Great Repeal Bill’ is likely to be an extremely complicated piece of legislation. It will bring into UK law legislation that is not currently on our statute book but that is directly applicable to the UK. It will also provide for the amendment of literally thousands of pieces of EU law that will need to be adapted to make sense in a post-Brexit UK. No one should underestimate the challenge of that process.

"The intention should be to convert the existing body of EU law into UK law with as few changes as possible. The Government may need to be granted wide-ranging powers to accomplish that task. Those powers should not, however, be used to pick and choose which elements of EU law to keep or replace – that should be done only through primary legislation that is subject to proper parliamentary scrutiny.

"Scrutiny must not be sidelined. There must be a clear limit on what the delegated powers in the bill can be used to achieve; a requirement for ministers to provide Parliament with certain information when using those powers; and enhanced parliamentary scrutiny of the exercise of those powers. Use may need to be made of sunset clauses to ensure that after Brexit the laws brought over from the EU are reviewed and, if necessary, amended without undue delay rather than being left to drift into permanence.

"We feel that, taken together, these measures should ensure that the cry of the Brexit campaign in the referendum, that the UK Parliament should ‘take back control’, isn’t lost before the UK has even left the EU."

Click here to view the committee's report.


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