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Implications for Brexit legislation: technical scrutiny of statutory instruments

Daniel Greenberg

22 Aug 2018

Daniel Greenberg, General Editor, Annotated Statutes and Insight, Westlaw UK, and Counsel for Domestic Legislation, House of Commons, provides an analysis of the standard parliamentary processes for technical scrutiny of UK statutory instruments (SIs) by the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, and implications for Brexit-related SIs.

Standard parliamentary scrutiny and Brexit-related SIs

The standard parliamentary processes for subjecting statutory instruments (SIs) to technical scrutiny are likely to be of particular interest to stakeholders that wish to monitor or challenge SIs made under the European Union (Withdrawal) Act 2018 (EUWA) or under other legislation which refers to, or is likely to be used in connection with, the Brexit process.

In outline, every public general SI is subjected to technical scrutiny by a joint or select committee created by standing orders for that purpose; and many SIs are considered from a policy perspective by a House of Lords committee that looks at the policy implications of some SIs.

These processes are separate, in particular, from:

  • The Delegated Legislation Committees in the House of Commons that provide the substantive policy consideration for those SIs which the enabling power requires to be laid in draft for approval before they can be made.
  • The House of Lords’ formal substantive scrutiny of those SIs when it considers the motion for affirmative resolution.
  • The new sifting process required to be carried out under the EUWA, which allows each House to express an opinion as to whether or not an SI proposed to be made under the negative procedure should instead be subject to the draft affirmative procedure.

Joint Committee on Statutory Instruments

The Joint Committee on Statutory Instruments (JCSI) is the most important technical scrutiny committee. It is created by separate standing orders, but in the same terms, by each of the two Houses.

In essence, the purpose of the JCSI is to consider the technical competence of SIs, and not to debate their policy. Like all select committees, it is constituted on a proportional party basis, but the JCSI works largely as a technical committee advised by its legal advisers, and it generally reports on a cross-party or non-party basis accordingly.

The JCSI will consider any matter relating to technical competence of an SI. In particular, that includes whether the provisions or proposed provisions are within the vires of the enabling power. It also includes whether the SI makes an unexpected or unusual exercise of the enabling power: that takes the JCSI back a little further towards matters of policy, insofar as it requires the JCSI to form a judgement not merely as to whether the policy falls within the literal meaning of the enabling power, but whether, applying a purposive or contextual construction, it is reasonably likely that Parliament intended and expected the power to be used in that way.

Given the amount of discussion in Parliament and elsewhere about the breadth of the enabling powers under the EUWA, this may be a matter that the JCSI will wish to scrutinise, particularly in relation to SIs made under the EUWA.

The JCSI has also, on occasion, commented on the most appropriate procedure for a particular SI where there is a choice available to the government, as in the case of section 2(2) of the European Communities Act 1972. Since the EUWA also gives the government the choice of the negative or the draft affirmative procedure in relation to a large number of SIs, it is possible that the committee may wish to scrutinise the choice in relation to Brexit SIs.

It is true that the EUWA creates a new and separate sifting mechanism to enable the two Houses to comment on the government’s proposed choice of scrutiny procedure in a number of cases, and there may be a certain element of Parliamentary comity that will lead the JCSI to leave the sifting committees to take the lead on this aspect of scrutiny, at least to some extent. However, it is still perfectly possible that the JCSI will wish to comment in a case where the sifting committees did not. This could be, for example, because the contra-indications against a negative procedure were more to do with general technical considerations than with the specific factors set out in the EUWA or other matters specifically relating to Brexit policy.

Effect of JCSI reports

Unlike a resolution of either House to annul a negative SI, or the refusal of either House to pass an approval motion in the case of a draft affirmative SI, a JCSI report has no direct effect in law. This is the case even if it draws attention to a doubt as to whether the SI is intra vires or draws attention to a significant defect in the drafting of the SI.

In practice, however, reports of the JCSI can have influence in three different ways.

First, although Article IX of the Bill of Rights prevents a party who seeks to challenge the lawfulness of an SI from relying directly on the opinion of the JCSI, JCSI reports on vires or other matters are commonly quite detailed. They set out the JCSI’s reasons for its doubt as to vires or as to any other type of technical matter at some length. In principle, this enables stakeholders that wish to question or challenge the effect or validity of an SI by judicial review to follow the reasoning of the JCSI and to adopt them in negotiations or proceedings.

Second, it is common for the government to react to a negative report by the JCSI. In the case of a draft affirmative SI, the reaction may take the form of formally withdrawing it by notice to the clerks in each House, or simply by not proceeding with a motion to approve the draft. In the case of a negative SI, the reaction is likely to take the form of revoking or, more commonly, amending it, so as to meet the JSCI’s published concerns. Since a negative SI has already been made, the government can only amend it ,whether before or after it comes into force, by making a new SI which amends or revokes and replaces the first SI. After withdrawing a draft affirmative SI, the government can simply re-lay an amended draft before Parliament for approval. Occasionally the government will seek to address a minor error through the issue by the National Archives of a correction slip; but this procedure is in principle confined to minor typographical errors of a kind that cannot affect the meaning of the SI, and the JCSI has recently confirmed the importance of not using it for substantive changes.

Third, an adverse report of the JCSI may be deployed expressly in proceedings in either House relating to the relevant SI. The most formal process for this is a standing order of the House of Lords that provides that a motion for an affirmative resolution on an SI laid in draft should not generally be taken before the JCSI has reported on the SI. In both Houses, however, and both in relation to negative SIs and draft affirmative SIs, it is open to MPs and peers to raise concerns of the JCSI as set out in its reports. The government would generally be expected to react to the points made in the report and, in an extreme case, might decide to withdraw, or later amend, the SI concerned.

Engagement with JCSI

It is becoming increasingly common for stakeholders to make submissions to the JCSI with a view to influencing its consideration of a particular SI.

If considering doing this, two principal points needs to be borne in mind:

  • As to timing, the JCSI publishes in each report a list of the SIs considered, including those in respect of which no action was taken. As a general rule, the JCSI is very unlikely to wish to reopen its consideration of an SI that it has already cleared or reported upon.
  • It is important to ensure that correspondence to the JCSI rigorously concentrates on technical objections to the SI, whether in relation to drafting, vires or otherwise, and does not infringe upon the policy; attempting to urge policy points on the JCSI is futile, as it will simply not consider matters outside its remit.

Financial SIs

SIs that relate to financial matters and, therefore, are directed by the enabling power to be laid before the House of Commons only, are dealt with by a separate House of Commons Select Committee on Statutory Instruments (SCSI), which meets immediately after the JCSI and without the attendance of Lords members.

Everything said above in this article about the JCSI applies equally to the SCSI in relation to financial SIs.

Secondary Legislation Scrutiny Committee

The Secondary Legislation Scrutiny Committee (SLSC) in the House of Lords is similar to the JCSI except in that it considers policy matters relating to SIs. Its influence is likely to be less than that of the JCSI since it is, by definition, considering matters of policy on which the government is entitled to pursue its own views, rather than matters of technical rule of law. Where, however, its reports concentrate on exposing unintended anomalies or other matters that do not form part of the central policy of the SI, its influence can be considerable.

In all other ways, everything said above in this article in relation to the JCSI applies equally to the SLSC.

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