In a previous post, I argued that there was some good news to take from the White Paper on the Great Repeal Bill. However, there are two main elements of the White Paper which give cause for concern. This post will examine the first concern. There is insufficient detail in the White Paper as to the way in which the broad sweeping powers to make delegated legislation will be controlled. A lack of effective scrutiny over these delegated powers may put rights in danger of inadvertent erosion.
Delegated Powers and Henry VIII clauses
One of the most heavily criticised aspects of the White Paper is the provision to grant broad ‘sweeping’ powers to the executive. The executive will be given the power to ‘correct’ references to EU institutions, or EU laws, in UK law that will become redundant following the UK’s exit from the EU. However, as some of these provisions are found in primary legislation, the executive needs to be given the power to use delegated legislation to amend, repeal, or replace primary legislation (a “Henry VIII clause”).
Given the mammoth task of ensuring a smooth transition as the UK leaves the EU, there is a need for an expedited process. However, these Henry VIII clauses are rightly criticised as they transfer power from the legislature to the executive. Although Parliament can still scrutinise delegated legislation, this scrutiny is not as effective as its scrutiny over primary legislation. There is a need to balance expediency and democratic accountability. However, getting this balance wrong can imperil human rights.
The White Paper is sensitive to the need to preserve proper democratic scrutiny. It notes the role of Parliament in determining the scope of delegated powers and scrutinising their exercise. There is also the mention of some controls over these delegated powers, specifically a sunset clause and other limits, such as the inability to create a new tax or criminal offence, or for its provisions to have retrospective effect. Nevertheless, there are two main areas in which the White Paper is deficient: in relation to the breadth of the powers granted to the executive, and as to the procedure used when enacting delegated legislation.
When balancing speed and scrutiny, we often use a short-hand of distinguishing between technical changes and policy changes. Technical changes can be done more quickly, and need less scrutiny. Policy changes require more detailed scrutiny. The White Paper argues that there are three justifications for using delegated legislation: (i) to accommodate changes that will need to be made after the Great Repeal Bill’s power to enact delegated legislation has come into effect, but before we know the full outcome of negotiations with the EU over the withdrawal agreement, the future relationship between the UK and the EU and any transitional arrangements from current to new membership; (ii) to make policy adjustments that are ‘directly consequential on our exiting the EU’ and (iii) to provide detail that is not suited to primacy legislation. All three may transfer policy decisions to ministers.
First, it is not clear what changes will need to be made: as details from the negotiations emerge, these may well include policy issues. Second, those policy issues that are consequential on leaving the EU will clearly fall within these powers. Third, whilst detailed provisions may not be suited to primary legislation, it is not necessarily the case that these detailed provisions will not include policy issues. It is hard to disentangle technical issues from policy issues. The House of Lords Constitution Committee recommended the establishment of a parliamentary committee to scrutinise these issues as and when they arose, to ensure that policy issues were not inadvertently deprived of sufficient political scrutiny. The White Paper makes no mention of this precaution.
In addition, there are no other limits on these delegated powers to ensure that they do not inadvertently harm human rights. A restriction to ensure that delegated powers granted to the executive cannot remove rights under the Human Rights Act 1998, or the Equality Act 2010, would be welcomed. With speed, comes a greater possibility of making mistakes. A legal restriction on the power to enact delegated legislation would allow such mistakes to be prevented by the courts, protecting human rights.
Delegated legislation can be enacted under either the negative or the affirmative resolution procedure. The former requires only that Parliament does not act to veto a change. The latter requires Parliament to positively approve it. The White Paper does recognise that the affirmative resolution procedure ‘may be appropriate for the more substantive changes’, but no detail or assurances as to when the affirmative resolution procedure will be used are given. It also refers to the fact that ‘many statutory instruments will follow the negative procedure’. This leaves the fear that speed could mean that broad policy changes, that inadvertently diminish rights, could be made with little democratic scrutiny. This fear is exacerbated when we contemplate the task before the UK Parliament, and how little time there already is in Parliament for proper scrutiny of delegated legislation.