Peers warn No 10 against ‘sidelining scrutiny’ when scrapping EU laws

Downing Street must not be allowed to use sweeping powers to scrap parts of EU law after Brexit without properly consulting parliament, peers will warn on Tuesday.

In a new report, the House of Lords constitution committee raises concerns about the implementation of Theresa May’s great repeal bill, saying new limits are needed to stop ministers getting rid of bits of EU law through secondary legislation without adequate scrutiny by MPs and peers.

The bill will be introduced in the next session with the aim of transferring EU law into British law in preparation for leaving the EU. The Cabinet Office has insisted that workers’ rights will be guaranteed and every law transposed “wherever practicable” but there are still concerns that ministers could attempt to scrap unwanted regulations through statutory instruments.

During its inquiry, a number of legal experts and human rights bodies issued warnings about the use of delegated powers, potentially giving ministers the power to scrap parts of EU legislation without much parliamentary scrutiny.

The committee’s chair, Lord Lang, will warn on Tuesday that “scrutiny should not be sidelined” as the huge existing body of EU law is transposed.

“The government may need to be granted wide-ranging powers to accomplish [its] task. Those powers should not, however, be used to pick and choose which elements of EU law to keep or replace – that should be done only through primary legislation that is subject to proper parliamentary scrutiny,” Lang said.

“There must be: a clear limit on what the delegated powers in the bill can be used to achieve; a requirement for ministers to provide parliament with certain information when using those powers; and enhanced parliamentary scrutiny of the exercise of those powers.”

Dominic Grieve, a Conservative MP, former attorney general and
supporter of the Open Britain campaign group, backed the findings of the Lords committee, saying there must be “no question of the
government creating statutory instrument powers in the great repeal bill to change the law at will”.

“Any changes to the law must involve a full act of parliament, not a secondary legislative device which bypasses parliamentary scrutiny,” he added.

It came as a leaked document raised the possibility that May will try to implement the final Brexit deal as part of the great repeal bill.

An official from the Brexit department was photographed carrying classified documents, which said: “You agreed to take a power in the great repeal bill to implement the agreement via secondary legislation, but that any important changes should be implemented via primary legislation.”

It also revealed David Davis, the Brexit secretary, had “queried whether there needed to be a legal distinction between the withdrawal and new relationship agreement”.

The Lords committee issued its warning as peers prepare to push for a proper veto on May’s Brexit deal at the end of two years of negotiations in 2019.

Parliament is currently only being offered a “take it or leave it” vote: accept May’s Brexit deal or leave the EU with no deal, and trade on World Trade Organisation terms instead.

However, peers are expected to vote on a cross-party basis for parliament to have the power to reject May’s deal and send her back to the negotiating table if it does not like what she has achieved.

If the amendment is passed, it would be the government’s second defeat on the Brexit bill in the House of Lords, which has already voted to guarantee the rights of EU citizens resident in the UK. The House of Commons is expected to overturn both amendments and send the bill straight back to the House of Lords again, unless MPs change their mind about the issues.

Ahead of the debate, the prime minister’s official spokesman said May believes giving parliament such a veto could encourage other EU countries to offer the UK bad terms in the hope of scuppering Brexit.

Asked why the government would not accept a more meaningful vote, May’s official spokesman said: “The PM believes we should not commit to any process that would incentivise the EU to offer us a bad deal.”

He said any deal that could be rejected by MPs would “give strength to other parties in the negotiation. We believe it should be a simple bill in relation to triggering article 50 and nothing else.”

The government’s plan for Brexit was also criticised on Tuesday by a House of Commons committee on international trade, which said its strategy for boosting global trade after leaving the EU was still unclear.

The watchdog, which contains a number of Tory Brexit supporters, called on the government to produce a white paper examining the merits of re-joining the European Free Trade Area (Efta) trading bloc, whose members include Iceland, Liechtenstein, Norway and Switzerland.

“The committee was impressed by the potential benefits of Efta membership, given the close alignment between the UK’s economy and those of Efta members, although the government has not proposed this as an option,” it said.

Carl Baudenbacher, the president of Efta’s court, has previously said Britain could retain access to the European single market and considerably more national sovereignty if it joined the bloc.

What happens next?

The House of Lords is still debating the government’s Brexit bill giving Theresa May the power to trigger article 50. How long will it be until the prime minister officially notifies the EU of the UK’s intention to leave?

Tuesday 7 March: The House of Lords will debate further amendments to the Brexit bill, probably passing at least one more to force a more meaningful parliamentary vote at the end of May’s two years of negotiations with Brussels. After report stage and third reading, the legislation will have concluded its first stage in the House of Lords by Tuesday evening.

Thursday 9 March: May attends an EU summit in Brussels without having managed to pass the Brexit bill through parliament yet.

Week beginning Monday 13 March: The Brexit bill could return to the House of Commons as early as next week. MPs will vote to keep or throw out Lords amendments, including one to guarantee the rights of EU citizens in the UK and potentially the other one on securing a more meaningful parliamentary vote on the final Brexit deal. If the amendments are rejected, it could conceivably return to the House of Lords that evening or on Tuesday 14 for further debate. Peers are unlikely to ask for a second rethink as Labour has promised not to frustrate the progress of article 50.

After the bill is passed by the House of Lords, the legislation will need to receive royal assent from the Queen, making it become law. May will be able to trigger article 50 any time after this point.

Wednesday 15 March: Donald Tusk, the president of the European council, has said he would like May’s letter giving notification of article 50 by mid-March so that leaders can react at an EU summit on 6 April.

Friday 17 March and Saturday 18 March: May could wait until after the SNP conference to trigger article 50 in order to frustrate Nicola Sturgeon, who will be under pressure to set a timetable for a second independence referendum. Alternatively, it could be triggered at the Conservative spring conference which is being held on the same two days.

Saturday 25 March: The other 27 EU leaders meet in Rome to mark 60 years of their founding treaty and May wants to avoid clashing with that celebratory event.

Friday 31 March: May’s self-imposed deadline for triggering article 50, formally beginning the UK’s exit from the EU.

Source: The Guardian