Parliamentary scrutiny of changes under Great Repeal Bill in doubt

30th March 2017

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Rebecca Smart

Amendments to EU law under the Great Repeal Bill would need to balance the need for scrutiny with speed, according to the government's white paper on the proposed legislation.

The white paper was published this morning, the day after prime minister Theresa May formally gave notice of the UK’s decision to leave the EU.

The bill would repeal the European Communities Act 1972 and convert existing EU legislation into UK law.

The white paper states that ‘a very significant proportion of’ EU-derived law for which UK government departments are responsible contains provisions that will not function appropriately if simply copied over.

Around one-third of environmental regulations fall into this category, according to environment secretary Andrea Leadsom. These are thought to include regulations on chemicals, greenhouse gases and pesticides, although the government has not provided a full list.

The Great Repeal Bill would give the government power to correct the statute book using secondary legislation, which does not necessarily require parliamentary scrutiny. Where the government delivers policies in this way, it must justify its actions, the bill states.

The government estimates that between 800 and 1,000 pieces of secondary legislation would be needed to bring EU law into UK law. This is roughly equal to the number of statutory instruments that were made each year between 2010 and 2015, the white paper states.

In the foreward to the document, David Davis, secretary of state for exiting the EU, wrote: ‘The substantial task of delivering a functioning statute book must be completed before we leave the EU – but the need to act at speed cannot be at the expense of ensuring the appropriate levels of parliamentary scrutiny.’

However, the white paper also stresses several times the need for a balance between speed and scrutiny.

It states: ‘The government is mindful of the need to ensure that the right balance is struck between the need for scrutiny and the need for speed. This white paper is the beginning of a discussion between government and parliament as to the most pragmatic and effective approach to take in this area.’

Environmental campaign groups expressed concern about the lack of clarity in the white paper on environmental issues. ClientEarth chief executive James Thornton said: ‘The white paper is not clear on the role of parliament. All current and future environment protections must be enshrined in primary legislation. Taking back control means respect for parliament as the democratic law maker and strictly confined powers to the executive to make technical changes.’

Trevor Hutchings, director of advocacy at WWF said: ‘The white paper gives far too much discretionary power to ministers, and during the transition phase this must be robustly scrutinised to prevent any watering down of environmental legislation.’

Samuel Lowe, Friends of the Earth campaigner, said that any substantive changes to EU laws should be made only by primary legislation. ‘More clarity is also needed regarding the scope of powers set to be granted to ministers. While the government will need the power to adjust rules to make them work in UK law, they should not be able to change their purpose or meaning without proper scrutiny,’ he said.

Andrew Bryce, solicitor and co-chair of the UK Environmental Law Association’s (UKELA) Brexit task force, noted that Theresa May’s letter to the EU used the phrase: ‘Wherever practical and appropriate’ in reference to the transferal of law into UK law. ‘I trust that the phrase will not provide an excuse to weaken our existing body of environmental law,’ he said.

UKELA is concerned that too little attention is being given to the future of environmental regulation, in particular, its potential significance in trade, he added.


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