Procedure Committee (Commons)

Delegated powers in the 'Great Repeal Bill' inquiry

Inquiry status: Concluded

The Committee has now closed this inquiry and has referred the matter to the Procedure Committee to be appointed in the new Parliament.

The Committee made a brief report on the progress of the inquiry to the end of the 2015 Parliament in its Seventh Report, Matters for the Procedure Committee in the 2017 Parliament, HC 1091.

Following the dissolution of Parliament on 3 May 2017, all Select Committees cease to exist until after the general election.

Scope of the inquiry

The Procedure Committee of the House of Commons is inquiring into the delegated powers likely to be claimed by the Government in its proposed Great Repeal Bill.

Following publication of the White Paper Legislating for the United Kingdom's withdrawal from the European Union (Cm 9446) on 30 March, the Committee has published a list of issues on which it would welcome written submissions, in addition to the initial terms of reference of the inquiry.

Revised deadline

The Committee would welcome brief submissions addressing any or all of the issues raised below, to arrive no later than Thursday 13 April 2017.

Anyone contemplating a written submission, or potentially prepared to give oral evidence, should contact the Clerk of the Committee as soon as possible via [email protected]

Further issues of interest

Issues of interest to the Committee arising from the White Paper (NB: paragraph and page references are to Cm. 9446):

  • The justifications for the use of delegated powers to be claimed under the Bill, and what information should be provided to Parliament in support of such justification (para 3.9)
  • The adequacy of the statutory procedures set out in the Statutory Instruments Act 1946 to handle the anticipated scope and volume of delegated legislation (box, page 23)
  • The claims made by the Government about present parliamentary scrutiny of delegated legislation, with particular reference to practice in the House of Commons
    o "Existing parliamentary procedures allow for Parliament to scrutinise as many or as few statutory instruments as it sees fit. Parliament can, and regularly does, both debate and vote on secondary legislation" (box, page 23)
  • The principles and mechanism for determining whether any proposed secondary legislation should be handled under the affirmative procedure or the negative procedure (para 3.22)
  • The information to be provided to Parliament to demonstrate the exercise of the powers claimed in respect of each instrument (‘anti-transposition notes’)
  • The conventions and procedures to apply in providing for debates and votes on instruments under the negative procedure (para 3.21)
  • The present practice of the Government in determining the procedure applicable to secondary legislation transposing EU Directives under section 2(2) of the European Communities Act 1972
  • Considerations to be taken into account when determining the 'most pragmatic and effective' approach to take in balancing the need for scrutiny and speed (para 3.23)
  • The merits or otherwise of requiring certain categories of instrument to be presented to Parliament in amendable draft form prior to approval (the so-called 'super-affirmative' procedure)
  • The means whereby the powers claimed in the Bill are to be time-limited (para 3.25)
  • The additional capacity, if any, required in the House of Commons for technical and policy scrutiny of the '800 to 1,000' instruments the Government anticipates will be necessary (para 3.19)
  • The prospects for any continued delegated powers required to ensure that UK legislation continues to operate in line with EU legislation, in circumstances where this meets the Government’s policy objectives

The Committee will in its deliberations be taking into account the analysis and recommendations in the recent report of the House of Lords Constitution Committee, The 'Great Repeal
Bill' and delegated powers
, HL Paper 123, published on 7 March.

Initial terms of reference

The initial terms of reference for the inquiry, published on 2 February, were as follows:

  • The adequacy of the present procedure for scrutiny of secondary legislation, and potential approaches for sifting the potential volume of legislation to be incorporated
  • The changes (if any) desirable to Commons procedures related to the delegation of powers or secondary legislation to address the likely scale and volume of ‘Great Repeal Bill’ legislation
  • The powers likely to be necessary or justified in primary legislation to incorporate the existing body of EU legislation (the acquis communautaire or acquis) into domestic law upon repeal of the European Communities Act 1972 (ECA), including (but not necessarily limited to):
    • powers to ensure the continuation in UK law of the legal order in force upon repeal of the ECA, with only such amendments as are necessary to ensure that the law applicable in the UK continues with the same effect):
    • powers to amend domestic primary and secondary legislation implementing EU obligations in line with Government policy objectives, following the cessation of those obligations and the repeal of the ECA):
    • powers to amend, in line with Government policy objectives, provisions of EU law presently given direct effect in UK law by operation of the ECA, following the incorporation of those provisions into UK law
  • Whether so-called "Henry VIII" powers are likely to be necessary or justified in this respect; whether alternative drafting techniques may produce the same effect; and whether there are any areas of the acquis or existing domestic legislation which should be off limits to such powers
  • Whether a time limit should be set upon the availability of any powers delegated for these purposes
Terms of Reference: Procedure Committee inquiry into Delegated powers in the 'Great Repeal Bill' inquiry

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