Instruments of change: inside the Brexit sifting process

Posted On: 
10th January 2019

As the clock ticks down to the 29th March, committees in both houses of Parliament are sifting through a mountain of EU legislation. Is it too much too late? Emilio Casalicchio reports

The risks of the Brexit ticking clock eroding a vital scrutiny mechanism appear all too real, reports Emilio Casalicchio
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As the chaos sparked by the vote for Brexit died down and Westminster peered through the debris at what leaving the European Union would mean in practice, an unlikely former monarch reared his head. Aside from his string of six wives and his break away from the Catholic Church, Henry VIII had a lesser-known claim to fame: handing himself the power to bypass parliament. The Statute of Proclamations – a law that gave him ultimate authority – has long been scrapped, but its memory was revived as MPs turned to the task of making Brexit happen.

So-called ‘Henry VIII powers’ are granted to ministers through Acts of Parliament and allow them to use secondary legislation – usually in the form of Statutory Instruments – to tweak or even repeal laws once they are passed.

The question of their use dominated the Brexit debate of 2017, as opponents warned that ministers would use them to sneak through big regulatory changes and refuse to repatriate powers returning from Brussels to the devolved nations. Labour vowed to oppose their use; peers inflicted a bruising defeat on the Government in a bid to curb them, and Gina Miller even threatened a legal challenge.

After all the drama, ministers backed down and agreed that the Commons should set up a sifting committee to look at SIs laid under certain sections of the EU Withdrawal Act – including those exercising Henry VIII powers – and decide whether some might require a closer look by parliament.

The European Statutory Instruments Committee was formed in July 2018 and despite the furore around its conception is now rarely mentioned in Brexit discussion. Its chairman, the Tory MP Patrick McLoughlin, describes his committee as another kind of “backstop” that checks the detail of proposals and tells ministers to “please think about this again” if needed.

It looks at the changes the Government hopes to make without the explicit consent of parliament (known as the negative procedure) and tells ministers whether they should in fact require that explicit approval (known as the affirmative procedure). Issues it has demanded extra scrutiny over include the implementation of laws covering cat and dog fur trades and the flying of flags in Northern Ireland.

The question of the Government avoiding scrutiny completely was neutered by the formation of the committee – but a new problem has emerged that calls into question the value of the process: the sheer workload of Brexit and the ticking clock of Article 50.

Despite sources confirming that the Government has dropped its expected total of SIs needed before the 29 March exit day from 1,000 to 600, the timetable still looks extremely tight. Only around 300 have been checked so far, meaning half are still to be considered with just 11 sitting weeks of parliament remaining before the clock runs out. In short: the committee has its work cut out.

The Government has assured McLoughlin he will not be dumped with piles of SIs at the eleventh hour, but he insists his team can “handle it” even if it does. “We have had a steady flow so far,” he says. “We are expecting a pick-up but obviously that will depend on where the negotiations go and only time will tell on that. I hope there will be enough time, but we will know by the end of January, I think.” He adds: “There is a desire to not get into the situation where they suddenly send us 200.”

In the worst-case scenario, the government could use emergency powers to bypass the committee if the clock runs too close to the moment of Brexit. McLoughlin admits there is a “concern” of that happening, but says it would be “in nobody’s interest,” adding: “So far we haven’t seen that sort of behaviour or anything like that kind of behaviour.”

The checking procedure does not just happen in the Commons. In the Lords, scrutiny of the ‘proposed negative’ instruments laid under the EU Withdrawal Act was tacked onto the work of the existing Secondary Legislation Scrutiny Committee. It split into two groups to better manage the volume of SIs, one chaired by Tory peer Lord Trefgarne and the other by Labour peer Lord Cunningham of Felling. Both are confident the workload is manageable.

“There will be more to do than we have been normally accustomed to for sure, but we can handle it,” Trefgarne says. “We will do what is necessary to make it all work, even if I have to stay up a bit later on Sunday evenings.” Cunningham adds that the committees are “working efficiently and regularly to deal with the workload and so far, we are coping with it”. A government source insists that all the required SIs will be brought forward for exit day, adding: “Good progress is being made in doing so.”

But the time pressure in the SI process does not end at the sifting committees. A total of 34 SIs have been recommended for upgrade by the two Houses, but the Government has only accepted their advice in 14 cases, with the remaining 20 still awaiting decision. Just three of those accepted have been scheduled for debate – and each one will require its own brand-new scrutiny committee for a thorough going over before it can be passed.

“The sifting process is far from complete but it’s only the start of a much longer task,” Dr Ruth Fox from the Hansard Society tells The House magazine. “Every time an SI is upgraded over a dozen MPs need to be appointed to a ‘delegated legislation committee’ to debate it. A committee room needs to be found, clerks and a Hansard reporter need to be allocated and the papers prepared. Ninety minutes have to be set aside for these debates, but they are so poor that the committees rarely last more than half an hour. It’s an enormous commitment of resources for a process that many MPs recognise is often a waste of time. The idea that these SIs are really getting the attention they deserve is for the birds.”

The challenge facing the process in the time left before Brexit cannot be overstated. And the committees are yet to cross the constitutional hurdle of the Government refusing to accept one of their recommendations for upgrade. Other concerns raised by the Hansard Society include a lack of time for the sifting committees to consult experts on the SIs, since each one has a 10-day time limit for a decision. Some SIs are meanwhile getting grouped into enormous documents – with one from BEIS running to a whopping 600 pages.

ESIC committee member and SNP MP Kirsty Blackman takes a less rosy view of the situation to McLoughlin. “The concerns the Hansard Society raise about time pressures are very, very real,” she says. “There is a major issue with ensuring there is enough time for the delegated legislation committees to debate.” She says the Government should be better prioritising the most important SIs and should take a no-deal Brexit off the table to cut the number required.

She also notes that the struggle is an illustration of “general” concerns about secondary legislation rarely getting the scrutiny it needs from overburdened MPs. The Government failed to comment on the apparent lack of progress over SIs already recommended for upgrade.

McLoughlin insists the Brexit sifting process, no matter how fraught, does amount to adequate scrutiny. He notes that the Government has not yet rejected a recommendation, and argues his outfit is one of many in parliament to keep an eye on ministers as they draw up their plans for quitting the EU. He adds: “It’s the only [sifting] procedure we have got so it’s for others to decide if it’s adequate. It is better than what was originally planned because what was originally planned was that there would be no sifting panel.”

The confidence of the chairs bleeds into the committee meetings themselves, which they describe as havens of calm. Their sessions are a far cry from the Punch and Judy politics of the Commons chamber – which is unsurprising since they take place away from the cameras.

In fact, party politics – and positions on Brexit – are left entirely at the door, according to Cunningham. “Nobody in my experience to date has ever spoken blatantly wearing a party-political hat,” he explains. “We are not there to argue about the merits of the policy. We are there to discuss and dissect and inquire about the implementation process.”

Trefgarne agrees: “We have never yet had a fundamental disagreement,” he says. “We are all sensible people.”

Sensible people they may all be. But the risks of the Brexit ticking clock eroding a vital scrutiny mechanism appear all too real. With just eleven weeks left, it will take a lot of late nights on a Sunday to get the work done.