NATIONAL ASSEMBLY FOR WALES
CONSTITUTIONAL AND LEGISLATIVE AFFAIRS
COMMITTEE
Inquiry into the powers under the EU
(Withdrawal) Bill to make subordinate legislation
Note by Michael
Carpenter CB, former Speaker’s Counsel, House of
Commons
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Further to the
request made on 14 December 2017 by the Chair of the Committee, I
am pleased to make these initial submissions. They are drawn from
my own experience of scrutiny arrangements in the House of Commons,
rather than in the Welsh Assembly. They also draw on my own
assessment of the workload likely to arise by reason of the powers
arising under the European Union (Withdrawal) Bill, notably under
Schedule 2 to the Bill.
2.
Although I retired from the service of the House at the end of
September 2016, I have been able to consult a number of former
colleagues in Westminster and Cardiff on the questions posed in the
Chair’s letter to me of 14 December 2017. Also by way of
general introduction, it is worth noting that the legal advisers to
parliaments in the various parts of the UK, as well as the Republic
of Ireland, have met regularly for many years to consider matters
of general concern. At least within the UK, there is obvious scope
for sharing expertise and good practice in relation to the
arrangements necessary to give effect to the UK’s withdrawal
for the European Union.
Are current
scrutiny procedures fit for purpose to undertake effectively the
scrutiny of delegated legislation that will be made under the Bill
by the Welsh Ministers and laid before the Assembly?
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The current
scrutiny procedures under Standing Order 21 require the
Constitutional and Legislative Affairs Committee (CLA) to consider
all statutory instruments, or draft statutory instruments which are
required by any enactment to be laid before the Welsh Assembly. The
CLA must report on whether the Assembly should pay special
attention to the instrument or draft on a number of technical
grounds. These grounds correspond to those of the Joint Committee
on Statutory Instruments, but there are specific additional grounds
viz. that the instruments or draft uses gender specific
language, and that there are inconsistencies between the meaning of
the English and Welsh texts, or that it is not made or to be made
in both English and Welsh (Standing Order 21.2). The CLA has a
discretion (under Standing Order 21.3) to report on a number of
merit-based grounds, including those of political or legal
importance or issues of public policy likely to be of interest to
the Assembly, or that the instrument is inappropriate in view of
changed circumstances, or that the instrument inappropriately
implements European Union legislation,
or that it imperfectly achieves its policy objectives. These broad
merit-based grounds are more akin to those of the Secondary
Legislation Scrutiny Committee and the Delegated Powers and
Regulatory Reform Committee in the House of Lords.
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The varied scope of
the reviews carried out by the several Committees has important
consequences for the way business is managed. In the House of
Commons, the JCSI is supported by a relatively small (around 3 or
4) team of experienced lawyers,
who specialise in legislative work,
with other colleagues in the Office of Speaker’s Counsel
dealing with general legal advice and European Union work.
There is a broadly similar pattern in the House of Lords, at least
as far as domestic law is concerned, in the team under the Counsel
to the Chairman of Committees, but none of these teams has to cope
also with language issues. By contrast, the CLA is supported by a
team of around 14, any one of which is expected to carry out the
generality of work for the Assembly, which will include advice on
legislative competence.
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Questions arise
under both systems if there is a need suddenly to deal with a large
volume of secondary legislation. In Westminster there is a high
degree of specialisation, with the advantages that this can bring,
but these come at the price of flexibility. In my own experience,
it has been easier to deal with emergencies which may arise in the
giving of general legal advice by calling on colleagues dealing
with legislative work, than it has been the other way round. For
the Assembly, the very generality of the scope of review poses a
challenge to those advising the CLA as to whether such review can
be sustained in the face of a potential substantial increase in the
number of instruments which have to be considered.
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As far as
volume is concerned, it may be noted that during the
4th Assembly (2011-2016) the CLA examined around 522
negative and 123 affirmative instruments, with around 23
instruments made jointly with UK Ministers . In her letter of 4
January 2018 to the Chair, the Leader of the House and Chief Whip
explained that had been considering the need to bring forward
subordinate legislation under the powers conferred on Welsh
Ministers by Schedule 2 to the Bill to correct deficiencies in
EU-derived domestic legislation within Welsh legislative
competence. The Leader explained that over 600 EU-derived domestic
legislative instruments had been identified as falling within Welsh
legislative competence. Whilst it is not yet clear how many of
these will require correction under the Schedule 2 powers, or
whether this is to be done by specific or generic instruments, it
seems likely that there will be a substantial increase in workload,
possibly amounting to several hundred instruments, and that this
work may need to be carried out under some pressure of time.
Furthermore, if Clause 11 of the Bill is to be amended so as
increase the range of ‘retained EU law’ which may be
corrected, it seems likely that the potential workload would be
further increased.
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The
timescale within which these Schedule 2 instruments will
need to be examined is as yet uncertain. It is, of course, the case
that the CLA is normally required to consider and (if necessary)
report on any instrument within 20 days of laying, but it is not
yet clear when the two year window under Clause 7(7) will commence
for the exercise of powers under Schedule 2. A further imponderable
may arise under the terms of any transitional agreement with the EU
for the withdrawal of the UK.
Whilst such an agreement has yet to be negotiated, it seems
possible even probable that it will require the continuation of
some EU law (as such, including references to EU institutions)
during the transition period. If this is the case, then the need
for deficiencies in ‘retained EU law’ to be corrected
will correspondingly diminish.
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A further
uncertainty (although not relating specifically to powers under
Schedule 2) arises under Clause 11 of the Bill. If this is amended
in the direction sought by the devolved parliaments, then this
would increase, even if only marginally, the scope for the exercise
of devolved competences, and thus the workload of the CLA. Any
amendment would be likely to increase the existing complexity of
the question of legislative competence, and call for careful and
considered advice.
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In so far as
instruments under Schedule 2 are concerned with dealing with
deficiencies (as defined in Clause 7 of the Bill), there are some
grounds to expect (at last as far as those cases referred to in
clause 7(2)(a), (b) and (g) are concerned) that the deficiencies
will be adjectival in nature and not involve any substantial policy
issues. The cases referred to in Clause 7(2) (c) to (e) will
probably be outside Welsh legislative competence in so far as they
concern the UK’s international relations. It may therefore be
reasonable to expect that, in most cases, the review by the CLA
will be concerned with the technical issues referred to in Standing
Order 21.2.
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These uncertainties
notwithstanding, it seems reasonable to expect that the workload of
the CLA will increase substantially in volume and complexity. In my
view, this is a question of scale and the management of business,
rather than an issue which calls into question the principles set
out in the Standing Orders applying to the CLA. I am afraid I
do not share the view, expressed by RSPB Cymru in paragraph 21 of
its comments on the Bill,
that an Assembly Committee should examine in draft all SIs laid
before the Assembly as a result of the Bill. Applying what in
effect amounts to an affirmative procedure to all instruments seems
a disproportionate response to what in most cases will be a
technical problem, and would be wasteful of time and resources
since it would at least double the effort currently devoted to
scrutiny. In my experience, scrutiny is best done when it is
selective, otherwise the proverbial wood will not be seen for the
trees.
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If pressed for an
opinion, I would say that the current scrutiny procedures are fit
for purpose, but that some slight adaptations could usefully be
made to deal with any surge of business during the
‘window’ when the powers under Schedule 2 may be
exercised.
Does
consideration need to be given to a sifting mechanism for delegated
legislation arising from the Bill?
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In Committee stage
of the Bill, amendments were made to include a new paragraph 3 of
Part 1 of Schedule 7 to provide for a sifting mechanism by a
committee of the House of Commons of instruments made by a Minister
of the Crown intending to rely on the negative procedure. The
amendments require a Minister of the Crown to make a statement to
Parliament that the negative procedure should be used, and to lay a
draft of the instrument before the House of Commons together with a
memorandum setting out the statement and the Minister’s
reasons for his opinion. The relevant Commons committee has 10
sitting days within which to make a recommendation on the
procedure. It appears from the amendment that if no recommendation
is made within that time, the Minister may make the instrument. The
procedure is novel and is therefore something of a half-way house
between the usual negative procedure and that used for affirmative
instruments. It is no doubt intended to cause Ministers to exercise
more caution in the use of the negative procedure to make
substantial changes in the law. It applies to instruments made by a
Minister of the Crown acting alone, or jointly with a devolved
authority, but it does not seem to apply to a devolved authority
acting alone.
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Whether such a
sifting process will apply in the Welsh Assembly will depend on
ongoing discussion on the Bill, since it would appear that a
sifting mechanism of the sort in paragraph 3 of Part 1 of Schedule
7 could not effected by Standing Order. The mechanism must
inevitably have an effect on workload, since it would involve a
further process concerned only with the choice of legislative
procedure in addition to the normal processes of
scrutiny.
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At a more modest
level, it ought to be possible in principle for the Chair of the
Committee to make decisions on behalf of the Committee to clear SIs
from scrutiny. I am aware that a similar system was applied by the
European Union Committee to clear EU documents of lesser importance
and was known informally as the ‘Chairman’s
sift’. Such a system was not feasible in the European
Scrutiny Committee of the House of Commons, probably because EU
matters were so politically divisive and the atmosphere more
politically contentious.
Whether all members of the CLA should devote their time and effort
to examining SIs which contain no technical issues and do no more
than make adjectival changes to the law to deal with the
consequences of UK withdrawal from the EU is really a matter for
them, but it is possible that a more selective system, particularly
for Schedule 2 cases, would allow them to concentrate on important
issues.
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The basis on
which the Chair decides to clear an unproblematic SI from scrutiny
would need to be agreed by Members of the Committee.
Presumably, such a change of practice could be effected without a
change to Standing Orders if Members were content to follow the
Chair’s recommendations and ratify his provisional view at
their next meeting. Conversely, if the Chair were to act on behalf
of the Committee in clearing SIs from scrutiny, it seems likely
that some change to Standing Orders would be
necessary
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The type of
instrument which could be dealt with by a sift of either kind would
be a matter for the Committee, but- for what it is worth- my
suggestion would be that it could be used for instruments which
were limited to making amendments to retained EU law to correct
deficiencies which were merely incidental or consequential to the
withdrawal of the UK from the EU. Likely candidates would be
adjectival references falling with paragraph 7(2)(a), (b) and (g)
of Schedule 2 to the Bill in instruments which did not give rise to
any of the reporting grounds in Standing Order 21.2. Such
instruments are probably unlikely by their nature to give rise to
the sort of considerations listed in Standing Order 21.3. (If they
did, a Chair’s sift without any ratification by Members would
be inappropriate). Another class of candidate might be cases where
another devolved parliament or the parliament in Westminster had
already cleared a corresponding correcting instrument from
scrutiny.
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As the Bill stands
at present, Clause 11 would not permit any, or any significant,
expansion of Welsh legislative competence which might otherwise
have been inferred from the fact that the EU Treaties would cease
to apply to the UK. If the restriction presently in s.11(2) of the
Bill on modifying retained EU law were to change, then (in my view)
the sifting arrangement might not be appropriate for instruments
using any expanded legislative competence which would arise in such
areas as agriculture and fisheries, since policy rather than
technical issues would be likely to arise, but this is very much a
matter for the Committee.
Are there other
options that need to be considered?
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It follows from the
above that I consider the existing institutions are able to cope
with the increased workload which is likely to arise, and I do not
see the need for any new institution or Committee. On the other
hand, there is clearly a risk of a large number of correcting
instruments being made immediately before exit day (now fixed as 29
March 2019).
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I understand there
is a practice whereby SIs are shown in draft to those advising the
Committee. There is a similar practice in Westminster, although it
appears to be limited to draft affirmative orders (i.e. drafts of
orders which are themselves to be laid in draft) and does not apply
to negative orders. This system of peer review has been valuable
and has prevented avoidable difficulties later on in the
legislative process, but clearly, a balance needs to be struck
between Assembly or Parliamentary officials assisting this process,
and being seen to have assumed responsibility for the drafting of
instruments.
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A more modest, but
still useful, arrangement would be one whereby Welsh Ministers give
some kind of advance notice to the Committee of instruments which
they propose to make and their relative length and complexity. This
could go some way towards avoiding congestion as exit day
approaches.
Other matters
related to scrutiny
19
It is worth
recalling that the Welsh Assembly does not face the difficulties of
migrating to a post-Brexit regime alone. The devolution settlements
vary across each of Scotland, Wales and Northern Ireland but there
are likely to be common issues arising in each as with the UK
Parliament in Westminster. In this context, the informal
network of legal advisers to the parliaments and assemblies in the
UK and the Republic of Ireland could well be considerable
assistance by exchanging best practice in relation to common and
shared problems, as indeed they have for over 15 years.
I submit these
comments in the hopes they are helpful, but I am conscious that a
number of variables still remain to be determined, such as the
factors mentioned in the Leader’s letter of 4 January 2018 to
the Chair, the likely form of Clause 11 of the Bill on restrictions
on modifying retained EU law, and whether the procedural sifting
mechanism in paragraph 3 of Part 1 of Schedule 7 is to apply to
instruments made by Welsh Ministers acting alone. Each of these is
likely to have an impact on the workload of the
Committee.
Michael
Carpenter