The House of Lords Secondary Legislation Scrutiny Committee has
published its report entitled 'Losing Control?: The Implications
for Parliament of the Retained EU Law (Revocation and Reform)
Bill'
Executive Summary
This is a report on the Retained EU Law (Revocation and Reform)
Bill. In making this report, we are in no way commenting on the
decision to leave the EU. We are doing so because we believe that
the Bill is an extreme example of a skeleton bill and, as such,
would lead to a significant shift of power not to Parliament but
to ministers.
In reporting on this piece of primary legislation, we, the
Secondary Legislation Scrutiny Committee (SLSC), a committee
charged with scrutiny of secondary legislation, have taken an
exceptional step which reflects the significance of our concern
about the implications of the Bill for the effective scrutiny of
the secondary legislation made under it. We are empowered to
consider “general matters relating to the effective scrutiny of
secondary legislation”. This report, which is intended to
complement reports from the Delegated Powers and Regulatory
Reform Committee (DPRRC) and the Constitution Committee,
identifies the ways in which we believe the Bill runs directly
counter to the principles of parliamentary democracy and
represents a significant backward step in the narrative
highlighted in our report Government by Diktat: A call to return
power to Parliament and in the DPRRC’s report Democracy Denied?
The urgent need to rebalance power between Parliament and the
Executive.
In this report, we focus on the sunset clauses (clauses 1 to 3),
the modification provisions (clauses 10 and 11) and the delegated
powers provisions (clauses 12 to 17).
• With regard to the sunset clauses, we draw attention to the
risk of inadvertent omission—that some retained EU law (REUL)
might expire at the end of the year without anyone knowing
because departments have failed to identify it—and the absence of
parliamentary scrutiny of the REUL which ministers have decided
should be sunsetted.
• With regard to the modification provisions which, amongst other
things, downgrade direct principal retained EU legislation so
that it can be amended by “ordinary powers to amend secondary
legislation” rather than by primary legislation, we draw
attention to the weakness of parliamentary scrutiny of secondary
legislation compared to scrutiny of primary legislation. We refer
to our statement in Government by Diktat that where scrutiny of
primary legislation is deficient (because a bill is merely a
skeleton bill) then that deficiency should be remedied by a more
challenging scrutiny procedure at the secondary legislation
stage. We call for the Bill to contain an enhanced scrutiny
mechanism that enables Parliament to decide that an instrument
makes changes of such policy significance that the usual “take it
or leave it” procedures—even if affirmative—relating to statutory
instruments should not apply but that a further option should be
available, namely a procedure by which the Houses can either
amend, or recommend amendments to, the instrument.
• With regard to the delegated powers provisions in clauses 12,
13, 15 and 16, we call for the powers to “restate”, “replace”,
“revoke”, “make alternative provision” and “update” to be subject
to an enhanced scrutiny mechanism and that the power to update in
clause 16 should, like clauses 12,13 and 15, be subject to the
sifting procedure under the Bill. We also call for statutory
consultation in relation to the exercise of powers under clauses
12, 13, 15 and 16.
Finally, we draw attention to the need for every instrument laid
under the bill to be accompanied by a clear, accessible and
comprehensive explanatory memorandum and complete and
comprehensive impact information, and we reiterate our call for
thorough and timely post-implementation reviews.
Conclusion
In this report we set out our concerns about the REUL Bill,
focusing on issues relating to the sunset provisions and the
effective scrutiny of secondary legislation. We have raised them
at this early stage so that they are available to members of the
House in advance of the second reading debate on the Bill and
subsequent stages. Amending the Bill so that the shift in power
between Parliament and the executive is reversed will require a
great deal of thought and creativity, and commitment to the
overarching aim of redressing the current imbalance of power. And
addressing these concerns upstream in the Bill will enable us to
give the House better help downstream, when the Bill is passed,
and the statutory instruments begin to flow.
To read the full report, CLICK HERE
