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EU (Withdrawal) Bill gives Ministers too much power to avoid parliamentary scrutiny

1 February 2018

The House of Lords Delegated Powers and Regulatory Reform Committee has today published a report criticising the European Union (Withdrawal) Bill for failing to provide sufficient parliamentary scrutiny of the law-making powers it gives to Ministers.


The Committee highlights Clause 7 of the Bill which allows Ministers to make laws by regulation if they deem it ‘appropriate' to remedy any deficiency when bringing EU Law into UK Law. The Committee say the ‘appropriateness' test is subjective and should be replaced by an objective text of ‘necessity'. If the proposed new laws could not meet the ‘necessity' test they should be introduced as primary legislation and subject to full Parliamentary scrutiny.

The report goes on to highlight concerns with the Bill's provision under Schedule 4 that would allow ‘tax-like charges' to be introduced by a Minister or public authorities without any parliamentary scrutiny. The Committee say ‘tax-like charges' are taxes and are therefore a matter for Parliament as established by the Article 4 of the Bill of Rights 1688.

The report goes further and says any proposals to increase these charges should be subject to the full scrutiny of the ‘affirmative resolution procedure' rather than the less robust ‘negative procedure' - which passes without the expressed consent of Parliament. The Committee highlight the proposed 13,000% increase in probate fees as an example of where a change of fee charged can be as significant as the proposal to introduce a charge in the first place.

The Committee reassert their previous recommendation that it should be Parliament not Government that has the final say over whether the level of scrutiny applied to a Statutory Instrument should be affirmative (requiring the express consent of Parliament) or negative (where it becomes law unless opposed in Parliament). The report says both the Commons and Lords should have sifting committees that would have 10 sitting days in which it could demand that any SI be subjected to the affirmative procedure. If the Committee of either House made that recommendation then the affirmative procedure would apply.  The Committee say this mechanism would strike the appropriate balance between the ‘scrutiny requirements of Parliament and the business needs of Government.'

Chairman's comments

Chairman of the House of Lords Delegated Powers and Regulatory Reform Committee, Lord Blencathra said:

“The European Union (Withdrawal) Bill, currently before the House of Lords, is one of the most significant pieces of legislation to come to Parliament in decades. Our report sets out some key concerns with what is being proposed.

“We feel strongly that Ministers should not be allowed to make laws by regulation rather than primary legislation just because they deem it appropriate. That is too vague. The ‘appropriateness test' should be replaced by a test of necessity. A Minster should be able to show the changes being made by a Statutory Instrument laid under clause 7 are necessary to meet a deficiency in retained EU law.

“The Committee had serious concerns about the proposal that new tax-like charges could be introduced by Minister, or even public authorities, without any parliamentary scrutiny at all. Tax-like charges are taxes and it is a fundamental principle of our constitution going back to 1688 that taxation is a matter for Parliament.

“The Committee was also concerned that for many of the regulations, the Minister – not Parliament – decides on the level of scrutiny to be applied to them. We have therefore recommended a sifting procedure so that Parliament can require a negative instrument to be upgraded to an affirmative.

“Our report will inform the House of Lords ahead of Committee and Report Stage of the Bill and I am sure the Government will want to reflect on what we have said before we get to those stages.”

Further information

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