Great Repeal Bill should not be used to avoid scrutiny

7th March 2017

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Parliament should make sure the government does not use delegated powers under the Great Repeal Bill as a way of changing the law without proper parliamentary scrutiny, a Lords committee has concluded.

Publishing a report on its inquiry into the issues likely to be raised by the Great Repeal Bill (GRB), the House of Lords Constitutional Committee said that the proposals would require ‘exceptional scrutiny’.

The GRB would repeal the European Communities Act and move EU legislation onto UK statute books. It will also provide for the amendment of thousands of pieces of EU law that will need adapting post-Brexit.

The committee noted that, due to the tight timescale for the UK’s exit from the EU and the large number of changes required, the GRB is likely to include wide-ranging delegated powers to enable the government to make changes through secondary legislation.

The government will also need to be able to amend law at short notice to take account of the outcome of Brexit negotiations, the peers added.

The committee warned that if it wants to change the law after Brexit, the government should do so through primary legislation, which is subject to full parliamentary scrutiny, not just ‘pick and choose’ which laws it wants to keep and which to lose.

The peers recommended that parliament should limit the scope of the delegated powers contained in the bill so they are used only to adapt the body of EU law to fit the UK’s domestic legal framework, and to implement the outcome of negotiations on leaving the EU.

The committee has also recommended that secondary legislation should come under enhanced scrutiny, such as a requirement for a minister to sign a declaration relating to each statutory instrument to confirm that it does no more than translate EU law into UK law.

It also suggested that each instrument is accompanied by an explanation of what the EU law currently does, the effect of any amendment and why it is necessary. This would enable parliament to have a proper say on the legislation, rather than being limited to approving or rejecting it, the committee said.

Environmental campaigners fear delegated powers could be used to alter obligations in environmental laws after Brexit. In evidence to the committee, WWF said new legislation might be rushed into statute with the presumption that ministers could unpick it in future with reduced parliamentary scrutiny.

The campaign group wants the GRB to include powers to introduce stronger compliance mechanisms than are currently in force in the UK, such as a new public body with powers to take legal action when it considered that the government was not complying with environmental legislation.

The Lords also analysed the impact of repatriating EU laws in the devolved administrations. The Westminster government needs to make clear the role of the Scottish, Welsh and Northern Irish governments in incorporating EU law in areas that will fall within their authority once the UK has left the EU.

Lord Lang, chair of the committee, said that the GRB was likely to be ‘extremely complicated’ and that the scale of the challenge it would bring should not be underestimated.

‘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,’ he said.


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