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September, 05 2017

Report on Henry VIII powers and environmental law

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Posted by Joe Newbigin at 12:47
Following on from our previous post on Henry VIII powers, UKELA are pleased to announce the publication of its third report in the Brexit and Environmental Law series: Brexit, Henry VIII Clauses and Environmental Law.

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Clause 7 of the European Union (Withdrawal) Bill proposes to give ministers far-reaching powers to amend ‘deficiencies’ in the law after Brexit – essentially provisions that would make no technical or practical sense when the UK is no longer a member of the EU. This power would allow Ministers to use regulations to amend existing Acts of Parliament – so-called ‘Henry VIII’ powers.

As a matter of general principle the use of Henry VIII powers should be kept to the minimum necessary for the effective continuance of domestic legislation after Brexit. However, we also believe that any debate on these powers must be informed by an accurate view as to the extent to which they will actually be used.

The purpose of this report is to set out where UKELA foresee these powers being used to amend the UK’s environmental laws after Brexit. UKELA applied its technical expertise to analyse all the Acts of Parliament relevant to the environment in England, identifying any provisions which a Minister might consider ‘deficient’ after Brexit and therefore require amendment.

As the analysis in this report shows the clause 7 power should be used far less than many would expect – at least in the environmental field. Across twenty-nine Acts of Parliament we found six provisions which require amendment, and a further thirty where we have said amendments are advisable, but not necessary. Seventeen Acts of Parliament – the majority – would not require a single amendment.

The report can be downloaded here.

Following up on the other strand of our previous post (relating to scrutiny) we welcome the publication today of the Hansard Society’s paper outlining the sift and scrutiny proposals, which we will be reading in detail. Read the full report here and a summary of the Society’s proposals at the Dispatch Box blog. Also out today is ClientEarth's thorough report on problems with the Withdrawal Bill, and the Land Use Policy Group/Institute for European Environmental Policy report on the potential implications of Brexit for UK agriculture and the rural environment.

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