The Brexit Bill has come in for stinging criticism in a new House of Lords report for giving ministers law-making powers without sufficient Parliamentary scrutiny.
It’s the second highly negative report in just a few days to be published by a committee of Peers. Earlier this week, the House of Lords Constitution Committee criticised the EU (Withdrawal) Bill as ‘fundamentally flawed’, packed full of ‘uncertainties and ambiguities’ and at risk of ‘fundamentally undermining legal certainty in a number of ways’. Now, the House of Lords Delegated Powers and Regulatory Reform Committee has highlighted other ‘serious concerns’.
The Bill will pass to the Lords committee stage for a line-by-line examination by Peers on 21 February, having passed its Second Reading unopposed this week but with a record 190 Peers speaking in the two-day debate.
The new report singles out for criticism provisions under Schedule 4 of the Bill, which would allow ministers or public authorities to introduce ‘tax-like charges’ without Parliamentary scrutiny.
It also criticises Clause 7, which gives ministers to introduce law-changing regulations if they deem it ‘appropriate’ to resolve a gap when bringing EU law into UK law. Rather than this subjective test, Peers say, regulations should only be introduced if it is a ‘necessity’. Any proposed new law that fails the objective ‘necessity’ test requires an Act of Parliament, the report states.
Moreover, Parliament not Government should decide what level of scrutiny to apply to a statutory instrument—affirmative (needs express consent from Parliament) or negative (becomes law unless opposed in Parliament), the report says. The committee recommends that both Commons and Lords have sifting committees, with up to 10 days to upgrade scrutiny levels to affirmative for a statutory instrument.
Lord Blencathra, the committee’s chairman, said: ‘We feel strongly that ministers should not be allowed to make laws by regulation rather than primary legislation just because they deem it appropriate. That is too vague.
‘The committee had serious concerns about the proposal that new tax-like charges could be introduced by minister, or even public authorities, without any Parliamentary scrutiny at all. Tax-like charges are taxes and it is a fundamental principle of our constitution going back to 1688 that taxation is a matter for Parliament.’
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