‘Great Repeal Bill’ Should Not be Used as a Short Cut to Avoid Parliamentary Scrutiny

The House of Lords Constitution Committee recently proposed new measures to safeguard the rights of Parliament as the process of Brexit gets underway. The report 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.

The Committee considers that, given the deadlines imposed by the timing of the UK’s exit from the EU, the Bill is likely to include wide-ranging delegated powers. These will permit the Government to make a broad range of changes via secondary legislation to the body of EU law in preparation for its conversion 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 process of converting EU law into UK law will eventually 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 draws a distinction between, firstly, the conversion of EU law into UK law, a process which will be facilitated by the ‘Great Repeal Bill’, and, secondly, a subsequent discretionary process in which the Government and Parliament choose which bits of EU law to keep and which to replace or modify. The ‘Great 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 areas which currently fall under the authority of EU as, just to give one example, it has said it intends to do on immigration, it should do so via primary legislation which is subject to full Parliamentary scrutiny.

The Committee argues that Parliament should seek to limit the scope of the delegated powers contained in the Bill, and develop several new processes within Parliament to ensure that the Government is using the delegated powers it acquires under the Bill appropriately.

Firstly, the report states that Parliament should limit the scope of delegated powers in the ‘Great Repeal Bill’ so that they can be used only:

• so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and
• so far as necessary to implement the result of the UK’s negotiations with the EU.

Secondly, the Committee recommends that enhanced scrutiny processes should be created for secondary legislation laid under the ‘Great Repeal Bill’. These include, among others, 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. In addition, 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.

The report also considers the impact of repatriating EU laws in the devolved administrations. The UK Government should consider carefully and make clear the role it sees for the Scottish, Welsh and Northern Irish Governments in preparing to incorporate EU law in areas that will, following Brexit, fall within their authority.

Commenting Lord Lang, Chairman of the House of Lords Constitution Committee, said:

“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 side-lined. 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.”

(Source: House of Lords)