Scrutiny of Delegated Legislation in Relation to the UK’s Withdrawal from the European Union


This Constitution Society report examines the standards of parliamentary scrutiny of delegated legislation in relation to Brexit. The European Union (Withdrawal) Bill delegates powers to Ministers to make instruments for various purposes arising from withdrawal from the EU, including dealing with deficiencies in retained EU law, enabling compliance with international obligations and implementing the withdrawal agreement. The Government estimates that between 800 and 1,000 instruments will be needed. Of the various Parliamentary procedures which could be applied to them, the Bill prescribes the negative procedure in most cases but the affirmative procedure if the instrument contains any of a number of specified provisions.

Criticisms have been made of these provisions by Members, committees and various outside bodies, and this Constitution Society report examines methods by which a sifting committee, along the lines of the existing Regulatory Reform Committee and its Lords counterpart, could specify the procedure applicable to each instrument, and considers the types of procedures for scrutiny, debate and decision which would be possible, taking the existing options available to the European Scrutiny Committee as a possible starting point.

This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.