In recently published evidence to the European Scrutiny Committee, we set out why the process for amending retained EU law should not be reduced to a wholesale transfer of power from the legislature to the Executive.

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We argue it would be constitutionally inappropriate for a Bill to give the Government a broad general power to amend all categories of retained EU law by Statutory Instrument.

This type of power is unprecedented in the UK’s legal system and would constitute a significant – and concerning – transfer of legislative competence from Parliament to the Executive.

As such, the following 5 points must be thoroughly considered to ensure any potential fast-track procedure to amend retained EU law is fair and lawful:

  1. Not all retained EU law suffers from a democratic deficit;
  2. Delegated legislation made under any proposed fast-track procedure should not be used to create policy;
  3. Different categories of retained EU law need different powers of amendment;
  4. Changes to retained EU law must be made in subject-matter specific Acts because any general power to amend retained EU law would be necessarily broad and would undermine parliamentary sovereignty; and
  5. Parliamentary scrutiny of delegated legislation alone cannot provide a sufficient check on overly broad delegated powers.

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