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Exiting the European Union: scrutiny of delegated legislation inquiry launched

15 September 2017

The Procedure Committee today announces an inquiry into Exiting the EU: scrutiny of delegated legislation.

This inquiry, which will draw on the work of the Committee on this subject in the 2015 Parliament, will focus on two areas of significant concern:

  1. the provisions being made for Parliamentary scrutiny of delegated legislation in the European Union (Withdrawal) Bill and in the subsequent "Brexit bills" announced in the Queen's Speech and expected to be introduced during the present two-year session of Parliament.
  2. the adequacy of procedures in the House of Commons for appropriate scrutiny of such delegated legislation.

The principal initial focus of the Committee’s inquiry will be on the powers to enact delegated legislation claimed by the Government in Clauses 7, 8 and 9 of the European Union (Withdrawal) Bill and the procedures for Parliamentary scrutiny set out in Schedule 7 to the Bill.

The Committee aims to report its findings from this stage of the inquiry in time to inform the debate on these provisions in Committee of the whole House.

The Committee would therefore welcome brief submissions addressing any or all of the issues of interest set out below, to arrive no later than Tuesday 3 October 2017.

Further calls for evidence will be issued as the inquiry progresses.

Chair's comments

Mr Charles Walker MP, Chair of the Committee, said:

"I am very pleased that the Procedure Committee has now been re-established. We have decided to pick up where our predecessors left off, and to hold an immediate inquiry into how the delegated legislation procedures in the Commons will handle the volume of legislative change required under Brexit while ensuring effective Parliamentary control of Ministerial decisions.

I welcomed the commitment of the Government, in its White Paper on the Bill, to 'meaningful discussion' with Parliament on 'the most pragmatic and effective approach' to balancing the needs of Parliamentary scrutiny with the timetable the Government faces. The contributions in the Second Reading debate in the Commons have indicated that colleagues on all sides of the House have genuine concerns about the Bill. Our initial focus will therefore be on how the Bill, and the House’s procedures, can be improved in the face of the unprecedented legislative challenge posed by Brexit."

Issues of interest

Issues of interest to the Committee arising from the European Union (Withdrawal) Bill:

Provisions of the Bill:

  • The scope of the delegated powers claimed in Clauses 7, 8 and 9 of the Bill, and the appropriateness or otherwise of the Ministerial discretion afforded in the exercise of such powers.
  • The adequacy of the mechanism for determining whether any proposed secondary legislation should be handled under the affirmative procedure or the negative procedure (paragraphs 1 (1)-(3) of Schedule 7 to the Bill, and cognate provisions in that Schedule).
  • The breadth of the discretion afforded to Ministers in determining the procedure to apply (paragraph 1(3) of Schedule 7), and the present practice of Ministers in determining the procedure applicable to secondary legislation transposing EU Directives under section 2(2) of the European Communities Act 1972
  • Requirements on Ministers to provide information to Parliament on the nature and effect of all proposals for amendment of primary and secondary legislation under the delegated powers in the Bill.
  • The adequacy of requirements in the Bill for Ministers to demonstrate the appropriateness and necessity of each exercise of the powers claimed.
  • The adequacy of the statutory procedures set out in the Statutory Instruments Act 1946 to handle the anticipated scope and volume of delegated legislation proposed, and whether a revised or enhanced procedure would be more appropriate.
  • The appropriateness of the time limits on the powers claimed in Clauses 7, 8 and 9 respectively.
  • The Government’s approach to establishing the balance between sufficient scrutiny of delegated legislation and efficient management of the legislative change required.
  • The appropriateness of the provision of scrutiny procedures for urgent legislative change in connection with the implementation of any withdrawal agreement.
  • 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

Arrangements for scrutiny of delegated legislation in the House of Commons:

  • The merits and possible mode of operation of a ‘sifting committee’ to determine the level of scrutiny appropriate to each instrument proposed under delegated powers.
  • Whether it is necessary to provide for a procedure which allows formal consideration and amendment of proposed legislative changes before they are presented to both Houses for approval.
  • Whether Commons procedures for consideration of instruments subject to affirmative resolution is appropriate and adequate for examining proposed legislative changes of the nature described in paragraph 1(2) of Schedule 7 to the Bill.
  • Whether Commons procedures and conventions for consideration of instruments subject to negative resolution are appropriate to the potential scope of legislative change proposed to be made by negative instruments under the Bill.
  • What implications there are for the scrutiny capacity and resource of the House of any net increase in the volume and scope of delegated legislation for approval.

Anyone contemplating a submission is invited to contact the Committee Clerk as soon as possible via [email protected].

Further information

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