Ministers Simply Must Have Powers To Make Sensible Changes To Our Statute Book As We Leave The EU

The House of Lords is known as a place where legislation is challenged and scrutinised, so, it was no great surprise when the Lords amended the EU (Withdrawal) Bill – the crucial Bill responsible for ensuring legal continuity after Brexit – by proposing a number of changes, many of which challenged the entire premise of the Bill.

Leaving aside the big ticket amendments on Parliament’s vote on the final deal, and on keeping Britain in the EEA there are a number of smaller amendments that may seem dry and technical but which pose equally severe risks.

When the Bill returns to the House of Commons, if MPs choose to retain even just two technical changes proposed by peers, the Bill would no longer fulfil its simple, vital role.

To grasp the impact, it is worth reiterating how this crucial legislation works. The Withdrawal Bill grants Ministers powers to make laws in time for the statute book to work on exit with swift parliamentary approval using devices called ‘statutory instruments’. There are between 800 and 1,000 of these needed before our exit from the EU, meaning we have a very short amount of time to pass a great deal of legislation.  

A number of the seemingly technical amendments proposed by peers would prevent Parliament’s swift approval of these ‘statutory instruments’, and place limits on powers in the Bill. The two changes that pose the greatest risk in this regard are the amendment on ‘enhanced protections’ and the proposed change to grant Ministers only the power to correct law ‘as is necessary’ – not where they consider it ‘appropriate’.

The ‘enhanced protections’ amendment proposes a new clause in the Bill that would prevent important powers from being used by Ministers to correct bits of law that will no longer work after Brexit in certain policy areas, without passing an Act of Parliament which take many months to pass. The simple effect of this is that we wouldn’t be able to make sure our law is ready in time for Brexit next year, opening up the possibility of huge gaps appearing in our statute book. The implications do not stop there.

For example, unless this amendment is overturned and the clause is removed from the Bill, there is a risk that we will not have a working system for regulating chemicals, medicines or biocides in place on exit day.

This is a sector which currently relies on the rapid and frequent adjustments to legislation to respond to developments in the industry. The Lords’ amendment could have a severe impact on our ability to safely develop and regulate the newest chemicals and drugs. Beyond the jobs that depend on this, there is a real risk to public health.

It could also stop us updating the lists of harmful chemicals in cosmetics products, used by millions across the country, and children’s toys. For example, changes were made recently to limit values of two chemicals commonly found in things like children’s finger paints and soap bubbles, to help prevent allergic reactions. If this amendment is left as it is, we will simply be unable to update this list quickly in response to new scientific evidence.

The second peers’ amendment, which changes the wording in the Bill ascribing powers to Ministers from ‘appropriate’ to ‘necessary’ looks like a simple change of wording, but in practice it would blunt the key powers in the Bill needed to correct the law in time for Brexit.

In changing this wording, there is significant risk that the Courts would not believe that many sensible changes proposed by Government departments are strictly necessary. For example, removing references to the EU, changing Euros to Pounds, and removing redundant material from the statute book no longer relevant after Brexit, are amongst the things which may not be considered strictly necessary but would leave our law confusing and uncertain if left unchanged.

Would it really be right for our law to contain references that will hold no relevance in this country after we have left the EU?

No, it wouldn’t. Of course we understand Parliament’s scepticism around the powers in the Bill, and that’s why we made our own proposals to limit them further. But Ministers simply must have the power to make sensible changes to our statute book before we leave otherwise we will create legal uncertainty which would damage businesses and individuals. That is in no one’s interest.

It’s clear that both of these amendments are based around reasonable concerns. But they pose a real risk to our entire domestic legislative programme for Brexit.

As we approach the Bill’s return to the Commons, the focus will understandably be on the headline items for discussion. We hope however, that MPs will consider the implications of these amendments very carefully indeed, or risk placing the UK firmly on a path to a chaotic Brexit.

Robert Buckland is the Solicitor General and Conservative MP for South Swindon