7.The Government’s intention is for the Bill to “provide the legal framework required to transition out of the EU, replace the CAP and deliver a range of reforms”, while conferring on Government” the powers needed to deliver this policy in England and to devolve agricultural freedoms to the constituent nations, while maintaining common UK approaches where relevant”. It is an enabling Bill and therefore much of the detail will come in secondary legislation, or Statutory Instruments (SIs). The accompanying Delegated Powers Memorandum “identifies the provisions of the Bill that confer powers to make delegated legislation” and “explains in each case why the power has been taken and explains the nature of, and the reason for, the procedure selected”. The Government has stated that the delegated powers in the Bill are designed to:
a) allow government policy to evolve in response to changing environmental priorities and changing social and economic circumstances;
b) move away from the rigid bureaucratic constraints of the current CAP legislation; and
c) enable government to respond to the, as yet unknown, outcomes of EU withdrawal negotiations.
8.In October 2018, the House of Lords Delegated Powers and Regulatory Reform Committee published its report on the Agriculture Bill, in which it expressed dismay at the Government’s approach to delegated powers. It stated that:
Parliament will not be able to debate the merits of the new agriculture regime because the Bill does not contain even an outline of the substantive law that will replace the CAP after the United Kingdom leaves the EU. Most debate will centre on delegated powers because most of the Bill is about delegated powers. At this stage it cannot even be said that the devil is in the detail, because the Bill contains so little detail. […]
Parliamentary scrutiny of the Bill is minimised because most of the Bill concerns a framework for future regulatory changes rather than substantive legislative changes that can be debated here and now.
The lack of detail in the Bill was also raised by witnesses. For example, the Royal Society for the Prevention of Cruelty to Animals (RSPCA) stated that “the Bill is essentially an enabling Bill which allows the Minister to make legislative changes under secondary legislation so it is difficult to anticipate what this legislation will propose”. Nick Allen, Chief Executive Officer of the British Meat Processors Association, told us that “we are struggling to see, out of the Bill, what it is planning to do and […]we desperately need a lot more detail”.
9.We asked the Rt Hon Michael Gove MP, Secretary of State for Environment, Food and Rural Affairs, about the Government’s approach to delegated powers. He compared what was being proposed in the Bill to EU decision-making. For example, he stated that “Parliament will have more of a say than it had when we were in the European Union”. When we pointed out that SIs could not be amended, he responded “well, you could vote them down, of course, but you can’t with European Union law, so there is undoubtedly a democratic gain”. George Eustice MP, Minister of State for Agriculture, Fisheries and Food, stated that the Government would:
be publishing more details about our latest thinking on the schemes so that, as the Bill progresses, people will have more information about our direction of travel and the nature of some of the pilots we are looking at, for instance. The actual SIs themselves, giving effect to some of these things such as contracts and fair dealing, will not have to happen in the short term, because it will mainly be deployed during the agricultural transition period from 2021 onward.
10.There is uncertainty about what the UK’s future holds post-Brexit and therefore it is appropriate for the Agriculture Bill to be an enabling bill, allowing the Government some flexibility. However, we are disappointed by the extent to which powers have been delegated and by the Secretary of State’s weak justification of this approach. Delegated (or secondary) legislation cannot be scrutinised as effectively in Parliament as primary legislation. At the very least, the Government should have published some indicative draft statutory instruments alongside the Bill. The Government should provide us with a detailed timetable for its programme of Statutory Instruments relating to this Bill.
11.Further uncertainty has resulted from the Bill’s provision of powers to the Government, with very few duties. For example, Sustain highlighted that:
At present, the Bill contains no requirement, nor any timeline, for the Secretary of State to act on many of the issues such as enforcing supply chain fairness. It provides powers to act not duties. This leaves much of it vulnerable to political priorities. There need to be amendments relating to duties.
The House of Lords Delegated Powers and Regulatory Reform Committee assessed the balance of powers and duties and found that:
Extensive powers are conferred on Ministers with correspondingly few duties. The words “The Secretary of State may” occur 36 times in the Bill. The words “The Secretary of State must” occur three times.
Significantly, powers are exercisable indefinitely and without sunset clauses. They include unlimited monetary penalties, the ability to create criminal offences punishable by up to two years’ imprisonment, and the conferral of enforcement functions on third parties. We are not convinced by the need for such extensive powers to be conferred on Ministers indefinitely.
The Minister’s response was that:
The idea that we should have “the Secretary of State must” instead of “the Secretary of State may” is a misreading of how Bills have traditionally been drafted in this country. […] The correct way to go about these things is to establish powers for the Government to be able to do things. How you then exercise those powers and commit yourself to do that becomes a matter for manifestos, for Budgets and for argument in the House of Commons.
12.We are concerned that the imbalance of duties and powers in the Bill, combined with the significant delegation of powers, does not provide sufficient clarity about how the new system for agricultural support will function and how delegated powers will be used. Given the fundamental changes being proposed, the Government should ensure that there are sufficient opportunities for parliamentary scrutiny as the new system and policies are implemented.
6 [Bill 266 (2017–19)]
7 [Bill 266 (2017–19)]
8 [Bill 266 (2017–19)], page 3
9 House of Lords, , Thirty-Fourth Report of the Delegated Powers and Regulatory Reform Committee, Session 2017–19, HL Paper 194, para 4
10 House of Lords, , Thirty-Fourth Report of the Delegated Powers and Regulatory Reform Committee, Session 2017–19, HL Paper 194, para 4b-f
11 RSPCA () para 4
16 Sustain: the alliance for better food and farming () para 7
17 House of Lords, , Thirty-Fourth Report of the Delegated Powers and Regulatory Reform Committee, Session 2017–19, HL Paper 194, paras 4d-e
Published: 27 November 2018