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August, 22 2017

Amending environmental law: Henry VIII and scrutiny

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Posted by Joe Newbigin at 17:30

Committee benchThe summer break has been uncharacteristically eventful for anyone interested in understanding the legal implications of Brexit. If you have spent the last few months under a rock (or on a beach) then this comprehensive collection of legal commentaries on the Withdrawal (European Union) Bill may be particularly useful for you1. The implications of the Bill for environmental law have attracted less attention, although we have seen some interesting comment by Green Alliance, NEF, ClientEarth and WWT (and on this panel discussion from the Guardian).

Here at UKELA the Withdrawal Bill has opened up new lines of enquiry in relation to Henry VIII powers and scrutiny. Henry VIII powers are provisions of a Bill which enable ministers to amend or repeal primary legislation by enacting subordinate legislation, with or without further Parliamentary scrutiny. Henry VIII powers are always controversial, because the constitutional norm is that enacting changes to Acts of Parliament is the role of Parliament, not ministers. The Withdrawal Bill needs to confer on ministers powers to amend ‘retained EU law’ so that it continues to operate effectively after Exit Day. However, the lack of restrictions on these powers and the expectation that they will be relied on to make thousands of amendments mean they have (along with issues of devolution) generated some of the Bill’s most strident critiques.

H8The parts of the Bill attracting attention for England are clauses 7-9 and 17 (for the devolved administrations this includes clauses 10 and schedule 2). Clause 7 illustrates the point. Sub clause (4) provides that a Minister’s power to make regulations “to prevent, remedy or mitigate… any failure of retained EU law to operate effectively, or… any other deficiency in retained EU law… arising from [Brexit]” can be used to enact regulations that make “any provision that could be made by an Act of Parliament”. ‘Retained EU law’ encompasses any legislation which continues to be part of domestic law after Exit Day by virtue of clauses 2, 3 or 4, therefore this includes primary legislation. This clause would allow Ministers to amend or repeal Acts of Parliament through secondary legislation, rather than through Acts of Parliament. Sub clause (2) sets out a non-exhaustive list of examples of ‘deficiencies’ which the powers may be used to remedy. These are broad and formidable regulation making powers, which may be used for up to two years after Brexit day.

To help inform the debate on the Bill we are providing some perspective on how much the Henry VIII clauses will likely need to be used to amend primary legislation in the environmental field. We have started to analyse the main Acts of Parliament for ‘failures’ and ‘deficiencies’ which may require amendment. We suspect the number of times this power will be used to change primary legislation may in fact be quite small. For instance, section 8 of the Climate Change Act 2008 requires the Secretary of State to set carbon budgets with a view, inter alia, to complying with the UK’s "European and international obligations". References such as these to UK’s ‘European obligations’ will make little sense after Exit Day and may require amendment. We are currently working through other Acts of Parliament with environmental implications looking for similar references.

The second strand of our interest focuses on the scrutiny procedure for statutory instruments made under the Bill in order to correct deficiencies in retained EU law. In the memorandum on delegated powers accompanying the Bill, the Government suggests that the powers under clause 7 alone will be used to enact hundreds of sets of regulations and that most of these will only be scrutinised using the negative resolution procedure. We expect a significant proportion of these regulations will be amending environmental legislation, albeit mostly secondary legislation (as EU environmental legislation has generally been implemented by Regulation) rather than Acts of Parliament. The procedure for scrutinising secondary legislation made under clause 7 is contained in schedule 7, which is elaborated on at paragraph 224 of the Explanatory Notes accompanying the Bill. This procedure does not usually allow the House of Commons committee which scrutinises a statutory instrument to amend it; instead, it can either approve the SI or reject it. As the Hansard Society have noted, since 1950 the House of Commons has only rejected 11 statutory instruments under the negative resolution procedure and the House of Lords rejected 7, which equates to 0.01% of all negative resolution procedure instruments.

We are looking at the implications of the proposed scrutiny mechanisms for environmental law. Given the potential for these powers to be used to make significant policy changes (for example new arrangements for domestic authorities to carry out functions currently exercised by European institutions) we consider it vital that there is proper parliamentary oversight of the use of these powers, whilst also not restricting the vast amount of legislation which will need to be approved. We were interested by the suggestion of an enhanced ‘sift and scrutiny’ system by the Hansard Society, and we are looking forward to seeing a more detailed proposal from the Society in early September. We are also keeping an eye on the development of the loose alliance of groups working on scrutiny procedures of the Bill under the banner of the Repeal Bill Alliance. If that sounds like something you might be interested in reading about then watch this space.

1: while we are rounding up available resources, the House of Commons library recently published a very helpful (and thorough) reading list of Brexit-related publications from researchers and committees in Westminster and the devolved assemblies.


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