Tag Archives: statutory instruments

House of Lords Constitution Committee reports on delegated powers

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photo_2017_1_cropped (1)tierney2.e1489415384219Last week, the Constitution Committee published its report on the increasing use of delegated powers by the government. Mark Elliott and Stephen Tierney highlight the key concerns raised and proposals made by the Committee in two principal areas: the ways in and extent to which legislative powers are delegated, and scrutiny of such powers’ exercise.

The House of Lords Constitution Committee last week published a major report on delegated powers. It is a component of a larger, four-part inquiry that the Committee is undertaking into the legislative process. The first report in this series, concerning the preparation of legislation for parliament, was published in October 2017; reports on the passage of legislation through parliament and post-legislative scrutiny will be published in due course.

Delegation of power

The Constitution Committee, unsurprisingly, does not begin from the unworldly premise that parliamentary delegations of law-making authority are inherently problematic; after all, they are, and will remain, a fact of life. The Committee does, however, adopt as its premise the position that the legitimacy of such delegations is governed by ‘constitutional standards’ whose enforcement amounts to a ‘constitutional obligation’ on parliament’s part.

The Committee goes on to articulate two key principles by reference to which the legitimacy of delegations of power ought to be judged. First, it is ‘essential that primary legislation is used to legislate for policy and other major objectives’, with delegated legislation used only ‘to fill in the details’. Against this background, the Committee laments the ‘upward trend in the seeking of delegated powers in recent years’. Second, and relatedly, the Committee states that it is ‘constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken’ — a phenomenon in which there has been ‘a significant and unwelcome increase’. Having thus nailed its colours to the mast, the Committee goes on to identify a suite of constitutionally dubious trends and practices to which its attention was drawn during the course of the inquiry and which it has itself discerned in recent years through its constitutional scrutiny of all Bills that reach the House of Lords. Continue reading →

Brexit and the territorial constitution: déjà vu all over again?

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wincottd (1)Brexit has led to conflict between Westminster and the devolved administrations, with the UK Attorney General recently going as far as referring the Welsh and Scottish Continuity bills to the UK Supreme Court. Here Daniel Wincott argues that the Brexit process has highlighted the flaws in the UK’s systems of intergovernmental relations and that action is needed to prevent repeating the mistakes of the past.

The territorial constitution is particularly fragile. Pursuing Brexit, Theresa May’s government has stumbled into deep questions about devolution. The territorial politics of Brexit is a bewildering mix of ignorance, apparent disdain, confrontation, cooperation and collaboration. Rarely have the so-called devolution ‘settlements’ appeared more unsettled.

The UK’s system for intergovernmental relations (IGR) between devolved and UK governments has been hidden in obscurity. Arcane processes – Legislative Consent Memoranda (LCMs – also known as Sewel Motions) and Joint Ministerial Committees (JMCs) – are now more widely discussed.

Brexit has revealed limits and weaknesses in existing devolution structures. UK intergovernmental relations is an unappetising spaghetti of abstruse acronyms, but compared to other multi-level states it is also remarkably informal and limited. Opportunities to develop the system may emerge, but it could also collapse under the pressure of leaving the EU. Continue reading →

Brexit and the sovereignty of parliament: a backbencher’s view

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Brexit is a constitutional, legal, and political challenge of a size the UK has not seen in decades and will have consequences that are both uncertain and long-lasting. In this post, Dominic Grieve offers his distinctive perspective on Brexit, discussing the concept of parliamentary sovereignty, the role of international courts in UK law, and the more troubling aspects of the Withdrawal Bill itself. 

The EU and the sovereignty of parliament

My Brexiter colleagues have in varying degrees signed up to the view that EU membership undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy. This certainly fits in with a national (if principally English) narrative that can be traced back past the Bill of Rights 1688 to Magna Carta in 1215.  This narrative has proved very enduring; it places parliament as the central bastion of our liberties.

But it can also be used merely as an assertion of power, particularly when the executive has effective control over parliament. It is with that power that parliament enacted the European Communities Act 1972, which gave primacy to EU law in our country. It was parliament that chose to allow what is now the Court of Justice of the European Union (CJEU) to override UK statute law, so as to ensure our conformity with EU law in all areas in which it has competence.

The justification for requiring that supremacy was that without it, achieving adherence to the treaties and convergence between member states in implementing EU law would be very difficult. This was not an unreasonable argument; but it is hard to avoid concluding that the supremacy of EU law lies at the root of the feeling of powerlessness felt by sections of the electorate and reflected in the referendum result. This feeling has been encouraged by the habit of successive UK governments to hide behind decisions of the EU as a justification for being unwilling to address problems raised by its own electors. But where the lawyer and politician in me parts company with the views of my Brexiter colleagues is in the extent to which they appear oblivious to the extent to which parliamentary sovereignty is not – and never has been – unfettered. Continue reading →

Addressing the constitutional flaws in the EU Withdrawal Bill: The view of the Constitution Committee

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Today sees the start of two days of debate in the House of Lords as the EU (Withdrawal) Bill has its second reading stage. Ahead of that debate, the Constitution Committee of the House of Lords has produced a report on the legislation. In this blogpost Baroness Taylor, who chairs the committee, explains that the Bill as currently constituted has major flaws that could cause serious constitutional problems if left unamended.

Brexit presents an unprecedented constitutional challenge for the UK. In order to achieve a smooth departure from the European Union, it is essential that there is legal certainty and continuity on exit day. The European Union (Withdrawal) Bill (the Bill) is the government’s attempt to achieve this. It attempts to deliver certainty by preserving existing EU law as it currently applies in the UK and converting it into domestic law. This is a legal undertaking of a type and scale that is unique and it poses significant challenges for both parliament and the government.

The House of Lords Constitution Committee gave early consideration to these challenges in its ‘Great Repeal Bill’ and delegated powers report and its interim report on the Withdrawal Bill itself. We are disappointed that the Government has not addressed our earlier concerns and recommendations and, as it stands, the Bill raises a series of profound, wide-ranging and interlocking constitutional concerns. The Committee’s latest report, published yesterday, explores the constitutional deficiencies of the Bill in detail, and offers a number of constructive solutions to improve this essential legislation.

At present, the Bill risks fundamentally undermining legal certainty in a number of ways. The creation of ‘retained EU law’ (existing EU law in a new domestic form) will result in problematic uncertainties and ambiguities as to what it contains and how it relates to other domestic law. The Bill fails to give sufficient clarity and guidance to the courts as to how retained EU law is to be interpreted after the UK leaves the European Union and it seeks, unsuccessfully and erroneously, to perpetuate the ‘supremacy’ of EU law post-Brexit. Continue reading →

Amendments are needed to strengthen the Withdrawal Bill’s provisions for scrutiny of Statutory Instruments

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5GMFtvPS_reasonably_smallToday saw the start of two days of report stage debate in the House of Commons on the content of the EU (Withdrawal) Bill. At committee stage, amendments were made that created a new sifting committee for statutory instruments related to Brexit. Joel Blackwell, of The Hansard Society, argues below that the current proposals are insufficient to guarantee proper scrutiny and makes several recommendations for changes that can be made before the bill passes to the House of Lords.

The EU (Withdrawal) Bill, which returned to the House of Commons for its report stage today, was successfully amended at committee stage in December 2017 to create a mechanism which will allow MPs, via a new European Statutory Instruments sifting committee, to consider statutory instruments (SIs) made under the Bill’s widest delegated powers and recommend an upgrade in the level of scrutiny of those about which they have most concern.

This new scrutiny mechanism, incorporated through a series of amendments tabled by Procedure Committee Chair Charles Walker, is intended to constrain the wide Henry VIII powers the government will use to make changes to retained EU law via SIs (under clauses 7, 8 and 9 of the Bill).

But if MPs are serious about scrutinising the changes arising from Brexit, these amendments, and the related proposals to amend Standing Orders will, as currently drafted, offer only limited help. If MPs are not happy with what the government wants to do, they will still be unable to exercise any real influence on the substance of a Brexit SI.

Continue reading →