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The government has been urged to create Whitehall advisory committees to boost scrutiny of controversial powers to amend EU legislation once it is copied into EU law.
In a submission to an inquiry by the House of Commons procedures committee looking at how delegated legislation will be scrutinised as part of the Brexit process, the chair of the Social Security Advisory Committee said the SSAC could provide a template to address concerns over executive powers.
Under the European Union (Withdrawal) Bill, all existing EU law will be written into UK legislation ahead of the UK leaving the European Union in 2019. As part of this process, the government is seeking to use executive powers, known as “Henry VIII powers”, to rewrite some laws without consulting parliament if changes are needed for new systems around immigration and regulation following Brexit, which some opponents have described as a power grab by the executive over parliament.
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The SSAC’s chair Paul Gray said the committee, which was established in 1980 to scrutinise draft secondary legislation on social security and advise government and parliament, could provide a model for how these changes could be reviewed to address concerns.
“Concerns have been expressed about whether the powers proposed in the current draft of the bill would unduly weaken parliament’s ability satisfactorily to scrutinise these secondary legislative processes,” he said. “So, could a body or bodies on the same broad model as SSAC therefore play a useful role in providing added transparency and independent input to inform and support parliament’s deliberations at these two stages, while avoiding the risk of hampering and unduly holding up the effective operation of government?”
He set out the aims of the legislation to be in two distinct stages – the first would automatically translate EU provisions, while a second would introduce new UK policy post-Brexit in areas such as immigration and environmental legislation that would then require a large volume of secondary legislation to change the inherited EU rules.
Gray said that there could be a case for a body of a similar standing to the SSAC – set up in statute but providing independent scrutiny – in both stages.
In the first stage, its role would be to “provide assurance that the form of the legislation does indeed achieve the proposed purpose and that there are not unintended effects and consequences”, while the second stage would examine “areas of government where EU law currently provides much of the legislative framework for policy”.
It seems “highly likely” a large volume of new secondary legislation will be needed in this second phase, Gray said.
“There could therefore be a strong case for establishing on a more permanent basis new advisory committees like SSAC as arms-length bodies of the departments most affected,” he added. “The role would be both to provide constructive advice and challenge to ministers at the draft regulations stage on the best detailed design and implementation of policy; but also with the right and power to provide independent input to parliament on key issues when the resulting regulations were formally laid.”
Gray added that the operation of SSAC demonstrated it was possible for advisory bodies to provide constructive challenge and transparency to legislation in a way that allows government to implement its business in a timely way.
“There is now the opportunity to extend these types of arrangement, already well-established in the field of social security, to make an important contribution to the unprecedented challenges that Brexit presents both for policy development and legislative change across government, and for parliament’s ability effectively to scrutinise resulting secondary legislation,” he added.