8.The purpose of the European Union (Withdrawal) Bill (the Bill) is to “provide a functioning statute book on the day the UK leaves the EU.” The Parliamentary Under-Secretary of State for the Department on Exiting the European Union, Mr Steve Baker MP told us:
there is a great deal of consensus around this Bill. There is consensus around the idea that we need to convert EU law into UK law, and I think there is a developing consensus that, in order to meet the imperative of delivering by exit day, there is a place for using statutory instruments to do so.
9.The Bill seeks to do this by creating a new category of domestic law: “retained EU law”. Retained EU law has three parts:
a)Clause 2 retains domestic legislation that gives effect to EU law obligations (“EU-derived domestic legislation”);
b)Clause 3 converts existing EU law that applies in the UK into domestic law (“direct EU legislation”);
c)Clause 4 saves rights and obligations in EU law that take effect through section 2(1) ECA and that are not converted by Clause 3.
Clause 7 of the Bill, which we explore further in section 1.4, creates a power to enable Ministers to use secondary legislation to correct retained EU law in order to deal with any deficiencies arising from withdrawal.
10.Witnesses who gave evidence suggested that the provisions for retained EU law in the Bill do not provide sufficient clarity as to the scope of this new category of law. Dr Charlotte O’Brien, York Law School, told us that Clause 2 was drafted very broadly, bringing a large swathe of legislation “within the ambit” of Clause 7, meaning potentially that pieces of primary legislation that implement EU directives (but still made sense as standalone legislation) could be amended under Clause 7 powers:
This means that there are very few protections and very little that is actually sacrosanct in terms of protection from policy [ … ] The common denominator among all the commentary that I have read is confusion here. There is quite a bit of confusion over things like whether the Equality Act could be affected.
11.Sir Stephen Laws, former First Parliamentary Counsel, suggested that primary legislation, which would exist anyway, would not fall within the definition of retained EU law. The Lords’ Constitution Committee has also suggested that standalone legislation like the Equality Act would not fall within the ambit of the Clause 7 correcting power as it would not exist by virtue of Clause 2. Professor Richard Ekins, University of Oxford, did not agree with these points, telling us that:
the Bill is intended to sweep quite broadly. Even though strictly you would not need Clause 2 to save primary acts, the point is to capture them. It might not be clear enough, and one should spell out whether it is intended to capture them in the definition of retained EU law such that Clause 7 comes to bear.
12.Questions were also raised with us as to how directly applicable laws, converted through Clause 3, would be applied and interpreted as many of these regulations are addressed to Member States. As Dr O’Brien explained:
If you read it literally, and the UK is not a member state, then you can say, “That applies but it is not applicable. It has nothing to do with us”. Are they supposed to have a literal reading or are they supposed to read it “as if”, and what is the “as if”? What is the connecting point? What is the tool of interpretation? Is it as if the UK is still a member or is it as if “member states” refers to UK? In that case, you then have all sorts of other questions about: what about those provisions that the UK has no control over because they are in the gift of other member states, whether it is in Clause 3 or Clause 4 in particular, dealing with treaty rights, like non-discrimination in other member states. That is not the gift of the UK to award, so how is that supposed to be read? [ … ] There is a whole raft of extra interpretation required and there is no guidance given on how that is supposed to work.
An alternative approach was suggested by Sir Stephen Laws. The operation of directly applicable EU law would be governed by new rules of UK law similar to those which govern the situation where foreign law is relevant to an issue before a UK court, i.e. as questions of fact rather than law. He told us that this would remove a lot of the conceptual problems that arise from the Bill’s approach.
13.A further area of uncertainty we noted was the exclusion of the precautionary principle, found in Article 191 of the Treaty on the Functioning of the EU, from the list in the Explanatory Notes of articles containing the directly effective rights captured by Clause 4. When we asked Steve Baker on 26 October 2017 whether the precautionary principle will be retained in UK law, he replied that that was his expectation but undertook to write to us to explain its exclusion from the Explanatory Notes. In his letter of 13 November 2017, Steve Baker explained that:
the Bill, through Clauses 3 and 4, will preserve the precautionary principle where it is included in existing EU directly applicable environmental legislation regulations and case law. For example, the precautionary principle is included in the REACH Regulation (1907/2006), the Deliberate Release of GMOs Directive (2001/18/EC) and the Invasive Alien Species Regulation (1143/2014) and so will be preserved by the Bill. Similarly, EU case law on chemicals, waste and habitats, for example, includes judgments on the application of the precautionary principle to those areas. This will likewise be preserved by the Bill.
14.There has also been debate on the constitutional status of retained EU law. Is it primary legislation, secondary legislation or in a sui generis category? This has practical effect in that primary legislation cannot be ruled invalid by domestic courts. Also the status of retained EU law could be important in resolving its relationship with other legislation, for example if conflicts arise. The House of Commons Library briefing paper on the Bill notes for example that a statute considered to be “constitutional” by the courts is not subject to the doctrine of implied repeal whereby “irreducibly inconsistent provisions” in statutes are resolved in favour of the one which is later in time. It is also the case that later subordinate legislation cannot impliedly repeal an earlier statute. The briefing paper argues that the indicators in the Bill as to the status of retained EU law are ambiguous.
15.In its recent evidence to the House of Lords Constitution Committee concerning the status of retained EU law, the Department for Exiting the European Union described direct EU legislation (which forms part of retained EU law) as “part of a unique and new category of domestic law” which “will operate in a different way to both primary and secondary legislation”. It would have been desirable if such a fundamental innovation in the structure of domestic law had been mentioned in previous Government documents or statements before it appeared in the Bill. The Department indicated that the Government did not consider it appropriate to assign a single status to retained direct EU legislation for all purposes and pointed to various other provisions in the Bill which provide for the status of such legislation, and which may assist in resolving the issues identified in the previous paragraph.
16.These issues are also partially addressed by other provisions in the Bill referred to in the Department’s evidence to the Constitution Committee. For example, Clause 5 of the Bill removes the principle of the supremacy of EU law so that domestic courts will no longer be bound to follow the judgments of the CJEU handed down after exit day. The Government’s Explanatory Notes on the Bill explain that as a consequence retained EU law would continue to take precedence over pre-exit domestic legislation. Furthermore paragraph 1 of Schedule 1 precludes the possibility of challenging the validity of any retained EU law in domestic courts on the usual judicial review grounds. However, the evidence of the Department concerning these various different provisions of the Bill does not clearly resolve all the uncertainty associated with the status of EU law, particularly if there were to be a conflict between retained EU law and post exit legislation.
17.Clause 6 provides that UK courts will not be bound by principles laid down, or decisions made, by the European Court on or after exit day, but that UK courts may have regard to anything done after exit day by that court (or another EU entity) if they consider it appropriate to do so. It will also allow the Supreme Court (and in some criminal cases the Scottish High Court of justiciary) to depart from principles laid down by and decisions of the European Court before exit day (applying the same test as would apply in deciding whether to depart from their own case law).
18.Clauses 5 and 6 are intended to ensure that Parliament and domestic courts, rather than the EU’s institutions, will decide on the content and meaning of the law post-exit. Both Lord Neuberger, former President of the Supreme Court, and his successor Baroness Hale have called for greater clarity for judges on how to take account of CJEU judgements after exit. Sir Konrad Schiemann, former UK judge at the CJEU, told us that judges would prefer not but nonetheless would have to deal with “something that will create enormous political controversy”:
it would be very nice for the judge if the Bill set out every possible thing, but it cannot be done. There are too many obscurities. There is a trade-off between giving Ministers sufficient flexibility to cater for the unknown and setting things out. The judges just have to do the best that they can [ … ] I can see entirely Lord Neuberger’s point: he wants to put the umbrella up for the judges when they are attacked by the politicians, as they not infrequently are.
Both Sir Stephen Laws and Professor Ekins questioned the inclusion of guidance to the courts, pointing to the existing principle under which the courts will look at foreign judgments and treat them as persuasive but not binding. Professor Ekins noted that “you could delete the clause and I think the judges would, properly, do the same thing.”
19.The Government says the principle of the Bill is to provide continuity and certainty at the point of the UK’s exit from the European Union. However, the provisions in the Bill responsible for converting and preserving EU law raise a number of significant legal and constitutional questions. There was no consistent view across the evidence we heard as to which laws would be preserved and how they would be treated. Although we support the premise of this Bill in providing for a functioning statute book in the UK once we leave the EU, these ambiguities risk undermining the Bill’s ability to supply legal certainty, a fundamental feature of the rule of law. Government needs to provide more clarity and information on the scope and status of retained EU law, including making clear whether it is to be treated by the courts as primary legislation, so that they cannot rule it to be invalid, or secondary. Greater clarity should also be given to assist judges on exactly how they are to apply CJEU decisions issued after exit day.
20.We welcome the Minister’s clarification that the precautionary principle will be retained in domestic law where it is included in existing legislation, regulations and case law. However we feel that this protection would be enhanced by also including Article 191 of the Treaty of the Functioning of the European Union in the illustrative list of articles referred to in paragraph 89 of the Government’s Explanatory Notes, which lists directly effective rights which would be converted into domestic law as a result of Clause 4. The Government should also consider whether any other principles of EU law should be retained in domestic law.
21.Once the UK leaves the EU, retained EU law will, over time and without correction, diverge from EU laws, as the latter evolves. As Steve Baker told us, the Bill “is intended to take law as it stands [ … ] the day before we exit, and make it work for the day after, but it does not include ‘keep pace’ powers, and we do not intend that it should.” The extent to which UK laws will ‘keep pace’ with EU laws will depend on the future relationship negotiated with the EU.
22.Sir Stephen Laws argued that protecting a snapshot of EU law would, over time, lead to a lack of clarity in the law:
As EU law diverges from what it was immediately before exit day and expertise on EU law in the UK becomes less relevant to day to day legal problems, the practical task of finding the law retained by the Bill is going to become more and more difficult. All new legal structures are built on the law that went before, but experience with those that rely for their meaning on the retention of a complete understanding of how the law worked before shows that, in those cases, the accessibility, certainty and clarity of the new law always degrades over time.
23.Dr O’Brien shared these concerns, contending that “it would be slightly perverse if, as a result of this Bill, the UK was wedded to an entrenched version of that law, which was not being followed by the other Member States of the EU.” This is a particular concern for environmental law, as Andrew Bryce from the UK Environmental Law Association told us:
The problem we have is that [EU environmental] directives will change very rapidly. There will be constant changes in those directives. Within a few months of roll-over there will be changes. We will have to have either a mechanism for incorporating those changes, or go through a whole parliamentary process to incorporate or not incorporate. We have a choice, but the legislation we have done by reference will be out of date pretty rapidly. We then have to make a choice as to whether we wish to adopt the changes.
24.Steve Elliott from the Chemical Industries Association suggested that most companies will manufacture to EU standards anyway as they do not “have the luxury” to operate differing manufacturing regimes and the EU regulation REACH sets the “global bar” which businesses will have to abide by. However, the Bill provides for no mechanisms to keep UK laws in step with EU laws in those areas where the UK may seek to maintain regulatory convergence.
25.The powers in this Bill to amend retained EU law are limited to modifications arising out of the UK’s withdrawal from the EU. The clause expressly prevents the power being used to update retained EU law. If the Government wished to update retained EU law by statutory instrument, this would likely require a power granted in separate primary legislation. For example, the delegated power in Clause 2 of the Trade Bill provides for regulations which may modify primary legislation that is retained EU law. The Nuclear Safeguards Bill also creates a power to modify retained EU law. This gives an indication that the Government intends to create powers to update retained EU law and that it will use other primary legislation as the vehicle for this.
26.There will also be areas in which the UK may not wish to ‘keep pace’ with EU laws after we leave the EU. In so far as is compatible with any agreement on its future relationship, the UK Government will be able to amend retained EU law to meet its own policy objectives. We heard about the opportunities to diverge from EU rules after we leave, and those areas where improvements could be made to the laws we retain. Caroline Normand from Which? told us that “across the piece there are many small pieces of legislation where, with a free hand, we could see ways in which we could help make the situation and the rules better for consumers,” for example, by amending VAT on energy which is set at 5% by the EU. Steve Elliott also told us how elements of REACH could be improved to better reflect the needs of UK industry:
In the area of the Industrial Emissions Directive, this is one of those Clause 2 elements. It is EU derived domestic legislation that has already been transposed into UK law in the environmental permitting regulations. As we work the latest level of negotiation on this, still within the European Union, there is a significant danger, I believe, that we will end up with standards that go above and beyond what is required, because those standards tend to reflect where some other European countries’ chemical industries are in the state of their capital equipment [ … ] standards that are out of kilter with current UK capability [ … ] There is an opportunity, working with our environmental regulator in particular, just to better reflect where our current standards are.
27.While we note the opportunities that arise out of the UK’s withdrawal from the EU to amend retained EU laws to better reflect the UK regulatory and business environment, there will be areas where it will be in the UK’s interests to keep pace with changes to laws in the EU. While there is no mechanism in the Bill to provide for retained EU law to keep pace with EU laws, the delegated powers in the Trade Bill and the Nuclear Safeguards Bill to modify retained EU law suggest that, at least in some areas, the Government intends to update retained EU law in accordance with post-exit modifications of EU law. The Government should confirm whether this is their intention and whether granting powers in further primary legislation is the approach they will take to achieve this.
28.Clause 5(4) exempts the Charter of Fundamental Rights from being converted into domestic law. The Charter is one of the few specified substantive exceptions to the Bill’s aim of continuity of EU law. Clause 5(5) states that references to the Charter in the pre-exit case law of either the CJEU or UK courts are to be read as if they were references to the corresponding “fundamental rights or principles” that are considered to exist irrespective of the Charter. Many Charter rights and principles form part of the “general principles of EU law”. Those general principles which have been recognised as such by the CJEU are to be retained by Clause 6(7) and Schedule 1 — but only for the purposes of interpreting retained EU law.
29.The Government considers that the Charter would not be “relevant” after the UK leaves the EU, because it applies to the UK only when acting “within the scope” of EU law; and asserts that no substantive rights will be lost as a result of not retaining it. Sir Stephen Laws suggested that something would be lost by removing the Charter, but it was unclear what (and there was, therefore, something to be gained from removing it):
It seems to me, if there is a legal advantage to be had from leaving the EU, it is that EU law is not renowned for its accessibility, comprehensibility or clarity, and that retaining provisions that are unclear is not going to be helpful. I also come from a tradition that says, if you get the detail right, you do not need to supplement it with vague general propositions [ … ] Preserving inconsistencies in the law between general principles and detail does not seem to be desirable and, given the choice, I will choose the detail.
Professor Ekins also argued that the Charter was problematic, in that it was “vague and uncertain, and creates a ground for open-ended challenges and litigation” and should be removed. On the other hand, Dr O’Brien said that the Charter was embedded in what would become retained EU law, especially in data protection, where it had been decisive in a number of cases. She noted that there is no equivalent to Article 8 of the Charter, the protection of personal data, in the European Convention on Human Rights. She also questioned how pre-exit case law in which the Charter had been decisive would be read:
For better or worse, it will make a difference if it is not there, so there are big question marks over what we are supposed to do with that gap and how the courts are meant to read these cases [ … ] it is not just cases; it is legislation as well. In the body of retained EU law, a number of instruments make explicit reference to the Charter.
Dr O’Brien also told us that Article 24, stipulating that “in all actions relating to children [ … ] the child’s best interests must be a primary consideration”, has tipped the balance in a number of Supreme Court cases.
30.Caroline Normand stated that the Charter had been important in supporting consumer rights, referring to judicial review proceedings brought by large tobacco companies challenging the standardised packaging of tobacco products regulations, which had been dismissed in the High Court in reference to the public health and other rights in the Charter. Although Professor Alan Neal, University of Warwick, said he would not “lose sleep” over the removal of the Charter, he noted that although the general principles of EU law were to be retained by the Bill, there would be no right of action on the basis of them, leaving them “somewhat weak”, though not “toothless”.
31.Asked to comment on potential practical difficulties that could arise if the Charter was no longer in UK law, Steve Baker told us that “For cases going forward, we believe that there are domestic causes of action that can be relied upon in place of the Charter: in particular, the Human Rights Act.” In his letter of 13 November 2017, he further explained that “an EU legal source exists for each right, and many of the rights expressed in the Charter can be traced to multiple EU legal sources. Under the current position set out in the EU (Withdrawal) Bill, judges will be required to look at the underlying source law on rights when considering cases post-exit, rather than the Charter.” He confirmed that he was in the possession of a draft document setting out how every article of the Charter is reflected in existing UK law, or UK law after withdrawal, and undertook to make it available to the Committee when it is “in the right state”. He also drew the Committee’s attention to the European Scrutiny Committee’s 2014 Report on the application of the Charter of Fundamental Rights in the UK which concluded that “whilst the Charter has made fundamental rights more visible [ … ] it has made their application more complex, and question[ed] whether this defeats its primary purpose.” Steve Baker was asked “whose rights or interests would be damaged if Parliament agreed to amend the Bill so that the Charter was left as part of domestic law?”. In reply he did not give any specific examples but said “the current human rights framework has areas of confusion, and this is an opportunity to ensure that we protect human rights while simplifying those areas of confusion.”
32.Dr O’Brien thought that replacing references to the Charter in domestic law with references to corresponding retained fundamental rights or principles, upon which there would be no right of action after exit day, would not meet the EU’s requirements for a future decision on or agreement with the EU on data adequacy. Asked about the implications of removing the Charter for the EU’s assessment of the UK’s data protection legislation, Steve Baker said:
it is in both sides’ mutual interests to have a data adequacy agreement. As I am sure you know, we will be implementing the relevant directive in UK law before we leave, beginning from a position of having implemented EU law on data protection. Given that it is in all of our interests to secure data adequacy, I would have thought that we would be able to proceed quickly, in our mutual interests, to secure a data adequacy agreement.
Mr Robin Walker MP, Parliamentary Under-Secretary of State for the Department for Exiting the European Union, added:
The data paper that we published over the summer made very clear that this is an area where we feel there is huge mutual interest in discussing it [ … ] This is certainly something where we see there being a very strong interest from both sides of the table in reaching a sensible conclusion. Along with the approach that this Bill takes to writing European law into place, it will allow the jurisprudence to be taken into account up until the point of exit, which partly addresses your point on data.
33.The Committee heard evidence for and against the Bill’s removal of the Charter of Fundamental Rights from domestic law. The purpose of the Bill is to provide legal certainty for the UK the day after it leaves the EU and not to reshape rights in the UK. It would be helpful if the Government published its memorandum on rights set out in the Charter, as referred to by the Minister, before Clause 5 is considered during the Committee Stage of the Bill.
34.Clause 7 allows Ministers to make regulations to prevent, remedy or mitigate deficiencies in retained EU law that would otherwise arise as a result of the UK’s withdrawal from the EU. The Government does not currently know all the changes that will be needed to ensure that retained EU law functions effectively after withdrawal. Although the powers to amend retained EU law with secondary legislation are very significant, Steve Baker told us that Clause 7 “requires us only to correct deficiencies that arise as a result of our withdrawal, so that is a very clear restraint on what we may do.” He then confirmed that it would be the Government who would decide whether any “deficiency” had “arisen from our withdrawal.” Sir Stephen Laws agreed that the trigger for the Clause 7 power is technical — that it has to arise out of withdrawal. However, once triggered, it could give rise to policy issues, while noting that whether the policy is going to be of political importance or not is a matter for Parliament.
35.Professor Ekins said that Clause 7 is “deliberately framed quite broadly” given the policy making choices involved in exit, noting that “one person’s technical change could be another person’s more substantive policy point.” He added:
There is a good reason for the breadth of the power, although it might not be a conclusive reason. If you place too many particular restrictions on the scope of the power, those restrictions are capable of being challenged in court. If you say this is a power for making technical changes, then you are making the question whether it is technical, policy or substantive.
36.Professor Neal suggested that concerns around the use of the Clause 7 power comes down to a matter of trust. He noted the fear that this power could somehow be used as a shield for substantial policy shifts; a fear which he stated had existed in the employment field since before the EU and would continue after it. He also reiterated the point made by Sir Stephen Laws that the words “arising from the withdrawal” represented an appropriate limitation to the Clause 7 power, while noting that there is a need for some sort of scrutiny.
37.We asked Ministers, given that the Bill gives the Government powers to amend any Act, what would prevent a UK Minister from using those powers to overturn a decision of one of the devolved Governments, and who would decide what came within the Clause 7 scope of “arising from withdrawal from the EU”. Robin Walker said that there was “no question of existing powers being taken away as part of this, or interference in the laws that exist already under a shared framework”. Steve Baker said that whilst the UK Government would determine what fell within the scope of the Clause 7 power, it would be held accountable for those decisions, and any statutory instruments would come before Parliament for scrutiny. He also said that:
I think the existing frameworks of devolution are respected by the Bill. It does not intrude on those areas where the Scottish Parliament has already been able to take decisions, and, in that respect, I would not see any change as a result of the design of this legislation.
38.We also asked Ministers why there was specific protection from change by statutory instruments for the Northern Ireland Act in Clause 7(6), but no similar protection for the Scotland Act or the Wales Act. Robin Walker told us that:
[The Bill] maintains a correcting power for the Wales Act and the Scotland Act, which is limited to only correcting deficiencies and is provided as a contingency arrangement to prevent gaps appearing in the statute books. Because the Northern Ireland Act is the main statutory manifestation of the Belfast agreement, and agreed by the UK Government and the Irish Government, on that basis, should the Act require further correction, it would have to be by primary legislation.
39.In his letter of 13 November 2017, Steve Baker emphasises that “any amendments to the devolution statutes that are needed as a result of our exit from the EU should be made in a way that does not otherwise alter the underlying settlement and does not substantively shift the boundaries of devolved competence. However, it is necessary for the key delegated powers in the Bill to be able to amend the Scotland Act 1996 and Government of Wales Act 2006.” He reiterated that any amendments would be limited to deficiencies in the law arising from withdrawal.
40.As we said in the introduction to this Report, it was not our intention to examine the scrutiny of delegated legislation in this Inquiry. Rather, we note that on 6 November 2017, the Commons’ Procedure Committee published its interim Report on scrutiny of delegated legislation under the Bill in which it concludes on the procedures for Parliamentary scrutiny of the statutory instruments that will be brought forward using powers set out in the Bill that:
the Government’s proposals for Parliamentary scrutiny, resting as they do entirely on existing procedures do not go far enough. The task for the House is unique and unprecedented and requires a scrutiny mechanism to suit.
In the Report, the Procedure Committee outlines a system to examine and authorise the exercise by Government of the powers it has claimed in the Bill to change existing law by regulations. The Committee recommends that this could best be achieved through the creation of a new committee of the House which could adapt the working methods of the European Scrutiny Committee for examining legislative proposals and determining which are of sufficient political and/or legal importance to merit further examination.
41.A number of questions have been raised around the appropriateness of the delegation of legislative powers in the Bill. Ensuring that Parliamentary scrutiny of legislative change is not compromised requires Parliament to operate appropriate procedures for the scrutiny of delegated legislation. At the same time, we are mindful of the absolute necessity of ensuring that the estimated 800 to 1,000 statutory instruments are passed before the relevant exit day. The Procedure Committee has published an interim Report on the scrutiny of delegated legislation under the Bill. We commend that Report’s proposals for further consideration by the House during the course of the Committee Stage of the Bill. Whatever method of scrutiny is decided upon by Parliament, it remains the case that uncertainty will only be removed if all the necessary legislative amendments are in place by exit day to ensure that there are no gaps left in the statute book. This will require substantial Parliamentary time and we believe that this must be found even if it results in longer sitting hours or a curtailed Parliamentary recess.
42.We heard evidence of the risk that transposing EU laws into UK law could leave a governance gap, particularly in environmental law which is embedded in an EU governance and enforcement structure. Steve Elliott told us that there are many aspects of chemicals regulation that depend on the involvement of EU institutions:
With REACH, it is [the European Chemicals Agency] ECHA in Finland. With the biocidal products directive, it is the Commission, and then they all have supporting structures and committees that look at socioeconomic analysis, and there is the Committee for Risk Assessment. The big question there is if the onus will be on the Health and Safety Executive to look at carrying out all of the current ECHA or Commission functions.
43.The Government has argued that existing regulatory bodies, Parliamentary scrutiny and the use of judicial review will be sufficient to hold Ministers to account and enforce environmental standards after we have left the EU. We heard from Ministers that they had begun discussions with the Secretary of State for Environment, Food and Rural Affairs on enforcement mechanisms, while also noting that judicial review is “one of the remedies that is available”. In a letter to the Environmental Audit Committee, the Under-Secretary of State for the Department for the Environment, Food and Rural Affairs, Thérèse Coffey MP stated:
Our legislative framework already includes provisions for regulators to enforce existing environmental regulations, and our system of judicial review and its body of public law enables any interested party to challenge the decisions and actions of the Government through the UK courts.
44.Andrew Bryce called for more thought from Government in terms of the enforcement of environmental law, pointing out that relying on judicial review was not an appropriate mechanism for holding Government to account:
We have expressed a view that in terms of the existing arrangements for the Commission to exercise a regulatory role, as they do through infraction proceedings, a lot of informal mediationtype processes and a citizen complaints system, we are suggesting, will leave a gap when we leave the EU. We are suggesting that judicial review, which is put forward as the answer by the Government currently, is not the answer for a whole series of reasons that I am more than happy to go into. Cost, ability and accessibility are some of the factors involved in the fact that judicial review is not a regulatory tool; it is something to deal with shortcomings that occur in the system.
We have suggested that, going forward, there is a good argument for having a body in the UK that has some oversight of Government and public body conduct, in terms of carrying out its obligations as they exist in legislation. We are up for discussion on that body.
45.A key feature of the Clause 7 power is to transfer functions from the Commission and EU agencies to UK competent authorities. As the Delegated Powers Memorandum explains, many services which enable markets to function and provide protection to individuals are currently provided at an EU level and must be repatriated to the UK for those services to continue. The memorandum gives the examples of the Competition and Markets Authority taking functions from the Commission, the Civil Aviation Authority replacing the European Air Safety Authority, and a UK government body taking on the functions of assessing chemical substances under the REACH regulation. Steve Baker explained how the Clause 7 power could be used to amend retained EU laws to reflect the new regulatory requirements:
I will put on the record a couple of examples in the delegated powers memorandum, selecting them at random: “In paragraph 2, for ‘Commission’ substitute ‘Secretary of State’, and (b) in paragraphs”—several numbers—“for ‘Agency’ substitute ‘Executive’”. These are the sorts of things that we envisage, which would be largely technical changes.
Of course, [ … ] in some areas where a function is repatriated, there is space for debate about where it goes, and we, in the course of the Committee stage, will set out how we believe we can reassure colleagues on some of these points.
46.The UK Environmental Law Association has underlined that a key challenge in replicating EU functions in the UK will be “establishing the requisite domestic expertise and regulatory capacity to administer any local regime (or securing access to EU bodies or expertise)”. These concerns were repeated to us by Caroline Normand who, considering consumer protection, gave this example:
If you just take food standards, the European Food Safety Authority and the role that they have in understanding the science behind food and new foods, the risk assessments that they make, the standards that they set, the early warning systems that they have in place for when food is found on the market that does not meet those standards and some of EFSA enforcement all need to be replicated in order to have a sound and solid food safety regime in the UK.
[ … ] It is one thing to have the institution ready with plans. It is another to actually create the scientific community, the committees and the culture as well, and then link that back in internationally, so there is a huge job.
47.Steve Elliott told us that transferring the REACH functions to UK authorities would require a minimum of two years, adding that it was difficult to give clear timelines as it remained unclear what would need to be brought over. As an illustration of the potential costs to the chemicals industry, Steve Elliott told us that:
In 2016, there was an estimate that, in the worst case, if we were to reregister everything because of exiting from the European Union and the need to do that, that cost would be about £350 million. The UK happens to be the second highest registrant in terms of countries around Europe, so that is a huge sunk cost and potential cost.
It was highlighted that the UK’s Health and Safety Executive, the enforcing arm for REACH in the UK, has been exemplary and certainly has the technical professional expertise. However, the problem could lie in the size of the task, the timing and the resources available.
48.We were told by Ministers that the fundamental principle of this Bill is “to ensure that the statute book and the agencies that implement it continue to function in the way the people would expect the day after we leave the European Union [ … ] and departments are working through ensuring that we are able to deliver that.” This will have implications not just for the UK statute book but also for the negotiations, as where the UK decides it wishes to retain regulatory alignment with the EU, the UK will need to show that enforcement is effective and that it will not end up undercutting the EU through a failure to enforce standards.
49.We note that the Environment Secretary has indicated that the Government is planning a new environmental watchdog, independent of government and with clear legal authority, to deliver a “green Brexit”. This is a step in the right direction towards enforcing environmental regulations once we leave the EU and ensuring that Government and other UK authorities are held to account, and we await more detail on the powers and resources available to this body.
50.The powers in Clause 7 for the Government to transfer regulatory functions from EU institutions to UK regulatory bodies are integral to the Government’s approach to transferring the acquis into UK law. However, the Government must be alive to the consequences of the loss of EU infringement proceedings (and complementary dispute tribunals such as the Appeal Board of the European Chemicals Agency) and the risk of creating an enforcement gap if regulatory functions are transferred to bodies that do not have the resources, expertise or independence to carry them out effectively. Such a risk could result in important protections being lost and the UK’s credibility in negotiating its future regulatory relationship with the EU being undermined.
51.In this respect, the devil will be in the detail of the statutory instruments under Clause 7 that are brought to this House. We note the current provisions that creating a new public authority and transferring functions to a new body require affirmative resolution. However, transferring functions to an existing body could also entail a major policy decision. It is difficult to define on the face of this legislation which decisions will be purely technical and which will require a greater level of scrutiny. This underlines how important it is to ensure that effective procedures are in place to identify which proposals merit further examination in Parliament. As we said in paragraph 41, it is important that the House gets this right and we reiterate our recommendation that the proposals put forward by the Procedure Committee for a new scrutiny committee should be given proper consideration during the Committee Stage of this Bill.
52.It will also be important that the Government publish details of how they will ensure that regulatory agencies in the UK have the resources and enforcement powers to do their job effectively. The relationship between consumers, industry and regulatory agencies not only provides legal redress but also product and standards approval which is vital for buyer confidence and access to markets. It will be important to avoid any unnecessary duplication of regulatory functions or any reduction in confidence in UK products or services. We welcome the Environment Secretary’s commitment to the establishment of a new agency to fill the “governance gap” and to ensure that the UK’s environmental standards and enforcement are as good as or even better than at present. We intend to return to the important question of the UK’s continuing relationship with EU agencies, including seeking clarification from Ministers about how sufficient institutional capacity can be created if and when functions are repatriated.
8 [Bill 5 (2017–19) – EN], para 10
9 Q164 (Steve Baker)
10 Q5 (Dr Charlotte O’Brien)
11 Q4 (Sir Stephen Laws)
12 HL Committee on the Constitution, 3rd Report of Session 2017–19 , HL Paper 19, para 26. In subsequent evidence to that Committee Richard Gordon QC commented “”The problem with that analysis is that the clear legislative intention must have been to subject all pre-exit day EU law to the modification regime”. Lord Neuberger agreed that this was “probably right”. (Evidence of 1 November 2017 Q10
13 Q5 (Prof Richard Ekins)
14 Q36 (Dr Charlotte O’Brien)
15 Sir Stephen Laws () para 37 and 38
16 Q36 (Sir Stephen Laws)
17 The precautionary principle aims at ensuring a higher level of environmental and human health protection through preventative decision-taking in the case of risk, where scientific understanding is yet incomplete.
18 HM Government, , pp 24–5
19 Q208–9 (Steve Baker)
20 Letter from Steve Baker MP to Rt Hon Hilary Benn MP on dated 13 November 2017
21 House of Commons Library briefing paper 8079, , 1 September 2017, p11
22 The doctrine of implied repeal also applies where a later statutory instrument is in conflict with an earlier one. The latter provision impliedly repeals the earlier one provided it has the power to do so”.
23 The provision in Schedule 1 paragraph 1 allowing subordinate legislation to determine the grounds for challenging the validity of retained EU law is an indicator that retained EU law should be regarded as akin to secondary legislation whilst the provision in Schedule 8 paragraph 19 that direct EU legislation should be treated as primary legislation for the purposes of the Human Rights Act 1998 points in the other direction.
24 Paragraph 19 of schedule 9 sets out that for the purposes of the Human Rights Act 1998 it is treated as primary legislation; paragraph 3 of schedule 8 provides that pre-exit powers to make subordinate legislation may be exercised to modify retained direct EU legislation; and paragraph 11 of schedule 8 amends the Interpretation Act 1978 so that after exit day the word “enactment” extends to retained direct EU legislation.
25 [Bill 5 (2017–19) – EN], para 96.
26 See BBC News, , 8 August 2017 and “”, Guardian, 5 October 2017
27 Q1–2 (Sir Konrad Schiemann)
28 Q1 (Sir Stephen Laws)
29 Q1 (Prof Richard Ekins)
30 Q215 (Steve Baker)
31 Sir Stephen Laws () para 33
32 Q2 (Dr Charlotte O’Brien)
33 Q132 (Andrew Bryce)
34 Q135–6 (Steve Elliott)
35 See Kenneth Armstrong, John Bell, Paul Daly and Mark Elliot, CELS/CPL Working Paper, October 2017, p12
36 , Clause 7(3) [Bill 5 (2017-19)]
37 , Clause 2, sub-section 6(a) [Bill 122 (2017–19)]. Also see the , Clause 76A, sub-section 6 [Bill 109 (2017–19)].
38 Q133 (Caroline Normand)
39 Q149 (Steve Elliott)
40 Department for Exiting the European Union, , Cm 9446, March 2017, para 2.23
41 Q23–4 (Sir Stephen Laws)
42 Q22 (Prof Richard Ekins)
43 Q19 (Dr Charlotte O’Brien)
44 Q21 (Dr Charlotte O’Brien)
45 Q116 (Caroline Normand)
46 Q120 (Prof Alan Neal)
47 Q121 (Prof Alan Neal)
48 Q203 (Steve Baker)
49 Letter from Steve Baker MP to Rt Hon Hilary Benn MP on dated 13 November 2017
50 Q251 (Steve Baker)
51 European Scrutiny Committee, Forty-third Report of Session 2013–14, , HC 979, summary
52 Q186 (Steve Baker)
53 , [Bill 5 (2017–19)], see Clause 5(5) and schedule 1(3)
54 Q31 (Dr Charlotte O’Brien)
55 Q204 (Steve Baker)
56 Q205 (Robin Walker)
57 Q166 (Steve Baker)
58 Q181 (Steve Baker)
59 Q7 (Sir Stephen Laws)
60 Q5 (Prof Richard Ekins)
61 Q6 (Prof Richard Ekins)
62 Qq144–5 (Prof Alan Neal)
63 Q181 (Robin Walker)
64 Q182 (Steve Baker)
65 Q194 (Robin Walker)
66 Letter from Steve Baker MP to Rt Hon Hilary Benn MP on dated 13 November 2017
67 Procedure Committee, First Report of Session 2017–19, , HC 386, summary
68 Ibid, paras 21 – 23
69 Q140 (Andrew Bryce)
70 House of Lords EU Energy and Environment Sub-Committee, 12th Report of Session 2016–17 , , HL Paper 109, 14 February 2017, para 45
71 Q138 (Steve Elliott)
72 Department for Exiting the European Union, 8 September 2017,
73 Q213 (Steve Baker)
74 Q220 (Steve Baker)
75 Environmental Audit Committee, Sixth Special Report of Session 2016–17, HC 257, pp.6–7
76 Q138 (Andrew Bryce)
77 HM Government, , para 18
78 Ibid, paras 16, 19 and 20.
79 Q224 (Steve Baker)
80 Written evidence to the Environmental Audit Committee on The Future of Chemicals Regulation After the EU Referendum,
81 Q139 (Caroline Normand). Also see paper by the Food Standards Authority on its , 20 September 2017
82 Q137 (Steve Elliott)
83 Q149 (Steve Elliott)
84 Q138 (Prof Alan Neal and Steve Elliott)
85 Q222 (Steve Baker)
86 “”, Michael Gove, The Telegraph, 11 November 2017
17 November 2017