Brexit sifting process

Peers have proposed a new 10-day sifting process for Brexit secondary legislation, to defeat the ‘unacceptably wide Henry VIII’ powers of ministers. In its first report on the European Union (Withdrawal) Bill, the House of Lords Delegated Powers and Regulatory Reform Committee said the Bill gave ministers ‘excessively wide law-making powers’, including allowing them to amend or repeal the Bill by statutory instrument.

It argues that Parliament rather than ministers should decide what level of scrutiny to apply to secondary legislation under the Bill.

Legislative scrutiny can take two forms—the affirmative procedure, where secondary legislation must be agreed by both Houses of Parliament before it can become law, and the negative procedure, where it will automatically become law unless either House votes it down.

The Peers recommend that, where the minister proposes to apply the negative procedure, a committee of each House or a joint committee should be given 10 days to upgrade scrutiny to the affirmative procedure. They also argued that ministers should not have the power to impose taxation by statutory instrument, and that tertiary legislation (law made by public bodies under powers conferred by ministers) must not be used to levy fees and charges. They said separate Bills rather than secondary legislation should be used to transfer powers to devolved institutions in Scotland, Wales and Northern Ireland.

Meanwhile, as David Greene, NLJ consultant editor and partner at Edwin Coe, writes in NLJ this week, there is still ‘complete uncertainty’ about whether British lawyers will be able to practise in the EU (and vice versa) after March 2019.