Parliamentary control over Brexit-related delegated legislation: An important Government climbdown

A few weeks ago, I wrote about a spat between the House of Commons Procedure Committee and the Department for Exiting the European Union. The issue concerned what happens if the Government chooses to ignore a recommendation of one of the new ‘sifting committees’ established to consider Brexit-related delegated legislation. Such committees were intended to assuage concerns about what has been called the ‘unprecedented and extraordinary’ ministerial law-making powers conferred by the European Union (Withdrawal) Act 2018. Sifting committees can thus recommend that delegated legislation being made by Ministers under the Act be subjected to heightened scrutiny, albeit that they cannot require this. Although the scheme was thus ultimately legally toothless, it was nevertheless intended — and understood — to have considerable political bite by dint of Parliament’s having ample opportunities to hold Ministers to account for refusals to go along with sifting committees’ recommendations. Importantly, it was understood that those opportunities would arise at a point in the process when pressure could still be exerted on Ministers, rather than Parliament being presented with a fait accompli.

The House of Commons Procedure Committee was thus doubtless surprised when it received a letter from a DExEU Minister indicating that the Government’s ‘intention is for a statement to be in the Explanatory Memorandum about why the Minister has not agreed with [the sifting committee’s] recommendation’. As the Chair of the Procedure Committee pointed out in his reply to the Minister, it was hard to see how such an approach would meet ‘the widely-held expectation of a political cost to the Government from disagreement’. He went on to say that ‘[a]t 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’ (my emphasis).

Against this background, it is to be welcomed that the Government now proposes to make good on its original undertakings, by ensuring that Parliament receives notice of an intention to ignore a sifting committee’s recommendation at an earlier stage in the delegated legislation-making process. As the Committee puts it in a statement published on its website:

The Minister confirmed to the Committee that in every case where the Government disagrees with a recommendation made by the European Statutory Instruments Committee (ESIC) in the Commons, or the Secondary Legislation Scrutiny Committee (SLSC) in the Lords, a Minister will make a Written Ministerial Statement in the appropriate House before proceeding to legislate. The Government had previously planned to provide this information to Parliament as part of explanatory memoranda accompanying the legislation. The Committee felt that this fell well short of what Ministers had offered during the passage of the European Union (Withdrawal) Act.

It may seem that this affair concerns little more than a technical disagreement about arcane questions of procedure. But that is far from the truth. In fact, this represents an important victory for Parliament. Or, more exactly, it represents the renewal of an important victory that Parliament understandably thought it had won several months ago when the EU (Withdrawal) Act was passed and associated ministerial assurances were given. The extensive powers vested in Minsters by that Act raised (and continue to raise) fundamental questions about the appropriate division of law-making authority between the executive and Parliament under the separation of powers. A meaningful sifting process — with real, albeit political rather than legal, bite — was thus the principal means of seeking to reconcile constitutional principle with the pragmatic need for broad ministerial power in what are, admittedly, the extraordinary circumstances of Brexit.

The Procedure Committee is therefore to be applauded for insisting that the Government must make good on the undertakings that Parliament extracted from it earlier this year — assurances that were sought in an attempt to render (more) constitutionally palatable executive law-making powers that (as the House of Lords Constitution Committee put it) would otherwise ‘fundamentally challenge the constitutional balance of powers between Parliament and Government’. But the very fact that the Procedure Committee had to dig its heels in over this matter is lamentable. It is also a powerful reminder, if one were needed, of how firmly the executive has sought, throughout the Brexit process, to put itself in the driving-seat. That it has sometimes been thwarted in that ambition is not about ‘blocking Brexit’ or frustrating ‘the will of the people’. Rather, it is a sign that the constitution, albeit creaking under the pressure of Brexit, is still — to some extent, at least — functioning as it ought. And that, whatever one’s views as to the merits or otherwise of leaving the EU, is surely a good thing.