Brexit, Delegated Powers and Delegated Legislation: a Rule of Law Analysis of Parliamentary Scrutiny
Ellis Paterson, Dr. Jack Simson Caird
Brexit has reopened long running debates over the impact of delegated powers and delegated legislation on Parliament's role in the legislative process. The legislative process in Parliament enables parliamentarians to hold the government to account for proposed changes to the statute book, to amend bills and to decide whether a government bill should be enacted. The government's reliance on delegated powers and delegated legislation to deliver Brexit has raised concerns that parliamentarians will be sidelined from the legislative process. This report aims to contribute to the debate on how parliamentary scrutiny of delegated powers and delegated legislation can be improved.
This report outlines two sets of standards, one on delegated powers and one on delegated legislation, both based on the reports of five parliamentary committees in the UK Parliament from the 2017-19 parliamentary session. For delegated powers, we examined the reports of the House of Lords Delegated Powers and Regulatory Reform Committee and the House of Lords Select Committee on the Constitution. For delegated legislation, we reviewed the reports of the Joint Committee on Statutory Instruments, the House of Lords Secondary Legislation Scrutiny Committee and the House of Commons European Statutory Instruments Committee. By extracting standards from the work of these committees, this report aims to clarify the normative basis of Parliament's scrutiny of delegated powers and delegated legislation.
The standards in this report highlight the centrality of the Rule of Law to the legislative process in Parliament. The normative framework applied by parliamentary committees when scrutinising delegated powers and delegated legislation is principally concerned with limiting the government's legal discretion to legislate, ensuring that both legislation and the reasons for legislating are as accessible and as clear as possible, and securing the opportunity for parliamentarians to hold the government to account for changing the law. These are not simply technical considerations, but instead a particular set of public law principles designed to defend Parliament's institutional role in the legislative process.
In considering how Parliament's scrutiny of delegated powers and delegated legislation can be improved, it is important to understand the normative framework that is currently applied by parliamentary committees. Parliamentary committees have limited powers to effect changes to the way that government approaches the legislative process. However, each of the parliamentary committees examined in this report may be able to strengthen their scrutiny by providing more detailed and specific guidance to government on the standards that they apply to delegated powers and delegated legislation based on their previous reports. A more prescriptive approach to scrutiny may help to address some of the concerns repeatedly raised by the committees in their reports and may also serve to strengthen the Rule of Law.