It’s not just Chlorinated Chickens: the Hidden Hand of Brexit Deregulation

In the rush to meet 29 March Brexit deadline, Charities warn Ministers crucial safeguards are being removed without the scrutiny of Parliament

Two weeks ago thirteen charities signed a letter of concern to DExEU Secretary Stephen Barclay about the lack of Parliamentary scrutiny on hundreds of laws being prepared in the run-up to Brexit.

Focusing on Food & Environment Laws, the letter explained how a missing sentence was removing ‘effective penalties’ from the text of Statutory Instruments, neutering the law by stealth while MPs were kept in the dark.

Our work around Brexit is intended to ensure that Parliament is appropriately sovereign and the executive held to account.

– the Public Law Project

Environmental charities fear that by removing the requirement for “dissuasive” penalties Brexit legislation is smuggling in a form of deregulation by stealth. In the case of fisheries, they argue this could actually ‘incentivise operators’ to break the law.

Is this an oversight by the Government, or is it a change of policy by the back door?

Keeping an Eye on the Executive

“One of the most controversial elements of the EU (Withdrawal) Act is the conferring of powers on ministers to amend or repeal primary legislation by Statutory Instrument,” observed the Hansard Society It notes that 125 of the 466 Brexit laws (Statutory Instruments) currently laid before Parliament actually “amend” Acts of Parliament.

The legal charity Public Law Project (PLP) has spearheaded the SIFT project to comb through the hundreds of laws that need to be ready for 29 March and to see if any flout public law standards or undermine human rights.

125 of the 466 Brexit laws (Statutory Instruments) currently laid before Parliament actually “amend” Acts of Parliament.

– Hansard Society

The Public Law Project states that it “takes no position on the UK’s decision to leave the European Union. Our work around Brexit is intended to ensure that Parliament is appropriately sovereign and the executive held to account.” Signatories to their letter to the minister Stephen Barclay include Friends of the Earth, Unlock Democracy and Pesticide Action Network UK.

The Key Missing Sentence

The Public Law Project letter revealed that a key sentence has been deleted from multiple pending laws, without being flagged up for MPs in accompanying notes. This is the EU standard that companies and individuals breaking the laws face penalties that are ‘effective, proportionate and dissuasive’.

A key sentence has been deleted from multiple pending laws, without being flagged up for MPs

The PLP observes a “trend”: “[Statutory Instruments] are consistently removing the requirement from retained EU law that penalty schemes are effective, proportionate and dissuasive“.

“Effective, proportionate and dissuasive penalties are a long-established principle of EU Law which as a result has been part of UK law for decades. To remove the requirement appears to be an attempt to make policy changes,” they wrote.

Stealth Changes to Food Safety

One example of these legislative changes is the General Food Law, in which the Public Law Project observed that the sentence in bold had been removed without any mention of the change in Explanatory Notes: “Member States shall also lay down the rules on measures and penalties applicable to infringements of food and feed law. The measures and penalties provided for shall be effective, proportionate and dissuasive.”

The charities warn Barclay: “The removal of this statutory duty means that the UK could choose to vary, unimpeded, s 19 of The Food Safety [Law] which currently provides penalties for operators who breach food safety regulations.”

Meanwhile, the US meat industry is lobbying for a watering down of UK Regulations as the US negotiates a post-Brexit trade deal with the UK, asking negotiators to fillet its list of banned substances after Brexit.

Sins of Omission or Commission

The UK Government has denied that any UK food standards will lower after Brexit. But PLP’s SIFT project raises a deeper question: will the UK retain its commitment to regulating companies that harm the environment, or public health?

With hundreds of pieces of legislation to pass in time for Brexit, Parliament is swamped in its scrutiny role. Barclay is being warned that, in the enormity of this task, safeguards for people and the environment can be eroded. A potential bonfire of regulations must not pass unchallenged.

Of even more concern is the fact these deletions only came to light thanks to scrutiny by charities. The 13 signatories to PLP’s letter had spoken to one another about the problem and decided to raise it with ministers. But by no means have they read every law for every change being made.

In Parliament’s rush to meet a 29 March deadline on hundreds of draft Laws, Parliament could miss other changes which have not even been flagged to MPs in the notes that accompany those laws.

And the systematic nature of these omissions begs the question: is diluting multiple laws an oversight by the Government or a deliberate policy?

For further analysis, follow our investigation In Contempt, Democracy in Darkness. You can also send any tips or ideas to @avwinter or alex.v.winter@pm.me