Executive law-making and Brexit: Are Parliament’s hard-won safeguards being undermined?

For more recent developments in relation to this matter, see ‘Parliamentary control over Brexit-related delegated legislation: An important Government climbdown’.

Few subjects are as likely to cause people’s eyes to glaze over as the secondary legislation-making process and the intricacies of its oversight by Parliament. However, unusually ­— and quite rightly — this issue came to political and public prominence when the European Union (Withdrawal) Act 2018 was being enacted. Why? Because the Act gives Ministers extraordinary legislative powers, as the House of Lords Constitution Committee emphasised in its interim report on (what was then) the Withdrawal Bill:

[T]he number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw. They would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence. We stress the need for an appropriate balance between the urgency required to ensure legal continuity and stability, and meaningful parliamentary scrutiny and control of the executive.

In the light of such concerns, attention focussed on establishing a ‘sifting’ mechanism, whereby a parliamentary committee or committees would examine proposed regulations, directing those considered to warrant heightened scrutiny into an appropriately onerous parliamentary process. The Bill was thus amended so as to accommodate a sifting process.  Schedule 7, paragraph 3 of the Act provides for a ministerial preference to make given regulations via the low-key ‘annulment’ process to be examined by a sifting committee. The committee, with the benefit of a copy of the draft regulations and the Minister’s reasons for preferring the annulment process, can then recommend that, contrary to the Minister’s view, the regulations should actually undergo heightened scrutiny. Importantly, however, making a recommendation is as much as a sifting committee can do: it cannot insist on a higher level of scrutiny.

It may appear, then, that the sifting process — a hard-won victory for parliamentarians disturbed by the extraordinary ministerial powers afforded by the Act — ultimately amounts to very little. However, while it is true that the Act does not tie Ministers’ hands legally — they are, as a matter of law, free to ignore a recommendation — the sifting process was intended, and expected, to have considerable political bite, by constraining Ministers’ political freedom to override recommendations. Thus schedule 7, paragraph 3(7) requires ministerial overrides of recommendations themselves to be justified to Parliament: ‘Before the instrument is made, the Minister must make a statement explaining why the Minister does not agree with the recommendation of the committee.’ Paragraph 3(8) goes on to say that if a Minister omits to make a statement under paragraph 3(7) before the instrument is made, he must instead make a statement explaining that failure. Meanwhile, paragraph 3(9) says that statements under paragraphs 3(7) and (8) ‘must be made in writing and be published in such manner as the Minister making it considers appropriate’. The intention, then, is to ensure that ministerial override of a sifting committee’s recommendation is not a politically straightforward matter, such that Ministers will think twice before taking such a step.

Against this background, recently published correspondence between the Chair of the House of Commons Procedure Committee and a Minister in the Department for Exiting the EU is noteworthy. In its report on the scrutiny of delegated legislation under the Withdrawal Act, the Committee noted that there had been concern during the passage of the Act that Ministers’ legal power to override recommendations might rob the sifting process of real teeth. The Committee therefore

‘welcome[d] the clear and unambiguous commitment of the Government, delivered on 18 July 2018 from the Despatch Box by a Minister during proceedings on the Bill, to making a written Ministerial statement to both Houses on every occasion they disagree with a recommendation from one or both of the sifting committees. We require this commitment to be honoured in full in each case that there is disagreement with a committee of either House.’

That ‘clear and unambiguous commitment’ was made by the Leader of the House of Lords, Baroness Evans of Bowes Park. She said:

I know that there has been concern that Ministers may ignore the [sifting] committees. [However,] I echo the sentiment of my right honourable friend the Secretary of State for Exiting the European Union when he said that there is likely to be a “political cost which will be significant” to going against a sifting committee recommendation. … Ministers will be required to make and provide to Parliament a Written Statement explaining themselves if they disagree with a recommendation from one or both of the sifting committees. Your Lordships can be assured that there will be no hiding place from the light of your scrutiny.

The Commons Procedure Committee was therefore no doubt surprised to receive a letter from DExEU Minister Chris Heaton-Harris MP — whose previous epistolary activities have also warranted public attention — informing it of the Government’s intended practice in this area. Referring to Baroness Evans’s remarks set out above, he said:

My Noble friend was referring to the amendments before the Other Place that day and did not specify where the written statement would be made. Let me clarify this. The intention is for a statement to be in the Explanatory Memorandum about why the Minister has not agreed with [the sifting committee’s] recommendation. We would also expect the Minister concerned to write to the Committee to set out the reasons why the recommendation is not being followed. In addition, … where a Minister does not agree with the recommendations of the Committee, the Minister will be prepared to appear in front of the Committee to clarify the rationale for that.

The place in which the statement appears may seem unimportant: and, indeed, the Act — as noted above — gives Ministers discretion to publish their reasons for disagreeing with the committee ‘in such manner’ as they consider appropriate. However, the timing of the publication is crucial — and, importantly, if the reasons appear only in the Explanatory Memorandum, they will be available only once the delegated legislation has been made. The point is made clearly by the Charles Walker MP, the Chair of the Procedure Committee, in his reply to the Minister. Walker points out to the Minister that the understanding that Government override of a recommendation ‘would carry a high political cost’ was instrumental in Parliament’s willingness to concede that legal override power in the first place. Walker continues:

[T]he Committee is unimpressed with the Government’s attempt to place a different interpretation on the commitment given by the Leader of the House of Lords. You argue that the means whereby the House is to be notified of a disagreement — through a section in the explanatory memorandum to be laid before Parliament only after the instrument in question — fulfils the statutory requirement in the Act. We do not see how this arrangement meets the widely-held expectation of a political cost to the Government from disagreement. At the very least we would expect a statement on the Government’s intentions, and the reasons for disagreement, to be made in public before, and not after, the irrevocable act of making the instrument in question. In our view it is discourteous to present a committee with a fait accompli in this manner.

The Government’s proposed approach is hard to square with the Act, given that it is required to ‘make’ a statement ‘before the instrument is made’, albeit that there is discretion over the manner of publication and albeit that the Act does contemplate Ministerial failures to make such statements (in which event the failure must itself be explained). But more broadly, the Procedure Committee is surely correct when it says that the Government’s proposed approach fails to meet ‘widely-held expectation[s]’ about how this scheme would function. The ‘high political cost’ of disagreement with the sifting committee was intended to counterbalance the Government’s legal power to override sifting recommendations, yet the proposal to make the reasons for disagreement publicly known — and thus subject to parliamentary and public scrutiny — only once delegated legislation is made removes much of the sting from the requirement to make a statement in the first place.

The Committee is flawlessly parliamentary in its language, noting that presenting sifting committees ‘with a fait accompli in this manner’ is ‘discourteous’. It might, however, reasonably have gone further. The sifting mechanism in the Withdrawal Act was intended as a means of addressing profound constitutional concerns about the balance between executive and parliamentary authority under the separation of powers. Any attempt to dilute that mechanism thus reignites precisely the fundamental constitutional questions that the sifting mechanism was intended to resolve. While, therefore, the Procedure Committee is doubtless right to question the courtesy of the Government’s stance, its propriety in other regards — most particularly in constitutional terms — might equally be doubted.