Our previous post considered the ‘Henry VIII powers’ which the Bill would grant to Ministers of the Crown and the devolved governments, authorising them, by means of regulations, to modify not only secondary legislation (ie other regulations, orders and rules), but also primary legislation (ie Acts of Parliament). This post looks at the other side of the same coin, namely, the mechanisms which the Bill provides for Parliament (and, in outline, the devolved legislatures) to scrutinise such legislation before it becomes law.
Bills go through a number of stages in both House of Commons and House of Lords before becoming Acts of Parliament. This allows MPs and the Lords to consider and vote on the provisions. Delegated legislation, on the other hand, is subject to much simpler scrutiny procedures, specified in the Act under which they are made.
Schedule 7 of the Bill provides for the scrutiny procedures for secondary legislation made pursuant to the powers in clauses 7, 8 and 9 (and the equivalent powers for the devolved governments under clause 10 and Schedule 2). Scrutiny in Parliament will usually take one of two forms:
Most regulations made under clauses 7, 8 and 9 will be subject to the ‘negative procedure’. The Government’s justification for this is set out in the Delegated Powers Memorandum submitted with the Bill:
Schedule 7, paras 1(2), 5(2) and 6(2) set out the criteria that will trigger the use of the affirmative procedures for statutory instruments made under the Bill. These are that the regulations:
However the Bill also provides that ‘in certain urgent cases’, a Minister can make regulations which come into force immediately without a draft being laid Parliament, but Parliament has then to see a draft and to approve it within one month or the regulations cease to have effect. This is known as the ‘made affirmative’ procedure. The Government’s justification for this is as follows:
Opposition MPs may push for the Bill to prescribe the use of more stringent super-affirmative procedures in certain circumstances, as these have previously accompanied the grant of extensive Henry VIII powers (such as in the Human Rights Act 1998, the Legislative and Regulatory Reform Act 2006 or the Public Bodies Act 2011). These additional statutory scrutiny safeguards (discussed in more detail here) would give both Houses the opportunity for a greater level of control over the exercise of such powers. Additional scrutiny elements included in earlier legislation are:
In political terms, MPs are likely to be particularly concerned about the Henry VIII power under clause 9, which would authorise a Minister to make regulations to implement the withdrawal agreement. Many MPs will feel uncomfortable about granting such powers in the Bill in advance of the final terms being known, and when Parliament has been promised a vote on the final deal. Indeed, Conservative backbencher (and former Attorney General) Dominic Grieve MP recently suggested it was likely Parliament would seek to amend the Bill so that its further approval was required before this power could be used.