The UK has two main forms of legislation – primary (Acts of Parliament) and secondary (regulations). Parliament has wide powers to scrutinise and amend the broad policy provisions that we see in Acts. But it simply couldn’t function if it had to use this time-consuming procedure to approve all the underlying detail. So it delegates the detail to government to settle – in regulations over which Parliament has, in practical terms, very little power. This is tolerable if the regulations are confined to uncontentious, technical matters. But, unless there’s effective scrutiny, it gives governments scope to push through, under the radar, matters of serious policy concern.
The EU (Withdrawal) Bill, now before Parliament, in effect proposes that much of the work of transposing EU-derived law into UK law should be done by regulations; and that there should be power actually to amend or repeal the provisions of some Acts by way of regulations (Henry VIII clauses). This reflects the fact that transferring the last 44 years’ worth of legislation into the new, post-Brexit format is a huge task that has to be done fast to avoid chaos immediately Brexit takes effect.
There wouldn’t be a constitutional problem if Parliament had effective powers to sift the regulations coming through; to scrutinise more closely any that appeared to need it; and to call for amendment of any that were seriously problematic. But MPs haven’t had effective scrutiny over regulations for years. Even without the Withdrawal Bill, the arrangements badly needed reform.
The Withdrawal Bill and other Brexit-related legislation now on the stocks make the case for reform more pressing than ever. The devil is going to be in the detail of regulations on a whole range of issues – workplace rights, environmental protection, food safety, immigration rules, medical licensing, aviation rights, water quality, nuclear safeguards, trading standards and much, much more.
The Hansard Society has published constructive proposals that would strengthen MPs’ powers of scrutiny and challenge. These, or something like them, need to be put in play before the first regulations under the EU (Withdrawal) Bill emerge.