It has been confirmed that there will be a Brexit Freedoms Bill. This “will make it easier to amend or remove outdated ‘retained EU law’ and will accompany a major cross-government drive to reform, repeal and replace outdated EU law.” The bill has not yet been published so we don’t know the scope of its new powers nor how the government intends to use them, but this comes at a time when parliamentarians and stakeholders have been increasingly concerned about the government’s approach to parliamentary scrutiny.
At the end of the last parliamentary session, the House of Lords’ committee which looks into the technical implications of secondary legislation, published a report that heavily criticised the government’s legislative practices and the poor quality of supporting information and consultations. This is not the first time parliamentarians have raised the alarm about a widening gap between government decision making and parliamentary scrutiny. In November 2021, two committees published reports in parallel: Democracy denied? and Government by diktat.
The choice between primary and secondary legislation isn’t always clear when new pieces of legislation are laid, as the Hansard Society has explored. Primary legislation is subject to more scrutiny than secondary (requiring debates and approval from both houses of parliament), but the government should be providing the basics to enable more scrutiny at this point, both within and beyond parliament, given that most laws are made and updated via secondary legislation.
There is a trend to undermine processes
In contrast, the committee’s report has identified examples across departments where the government has restricted parliamentary scrutiny of legislation (eg by bringing it into effect immediately or making permanent changes, neither with good reason), has failed to provide information on its impact, has undertaken inadequate consultation and where it has provided a poor explanation for the policy change or unhelpful guidance (if any at all).
This trend extends beyond legislation too. For example, the Department for International Trade only does one public consultation ahead of launching trade negotiations, often years before the agreement is eventually signed, and it has been repeatedly criticised by the International Trade Committee for failing to set out a clear timeline for parliamentarians to scrutinise new free trade agreements.
Meanwhile, the Department for Environment, Food and Rural Affairs failed to publish the evidence packs underpinning its legally binding targets for species abundance, water pollution, air quality, waste and resources, and tree cover, until towards the end of the public consultation period (which has since been extended).
Scrutiny is a pillar of democracy
The ability for stakeholders and civil society to scrutinise and feed into government policy is a central pillar of democracy and strengthens policy making. The House of Lords’ report highlights where elements of this pillar are being dismantled or poorly executed and the forthcoming Brexit Freedoms Bill signals a move to reduce this ability further.
Proper scrutiny requires a clear understanding of the policy change and rationale behind it, so it’s extremely disappointing to see a number of instances where the government has failed to publish impact assessments on time (or at all), comprehensible explanatory documents (ie what has changed, why, and how) or guidance for the legal implications in practice.
Reassuringly, the House of Lords committee “take[s] the view that [the Brexit Freedoms Bill] should respect and safeguard Parliament’s fundamental constitutional role in the effective scrutiny of primary and secondary legislation.” But we need more than a group of peers pushing to hang on to parliament’s role in shaping UK law, particularly as the UK’s Environment Act 2021 and net zero mandate are to be implemented mainly through secondary legislation.
The government is grabbing power from parliament
Despite the promise that we would “take back control” following the UK’s exit from the EU, it’s hard not to see the Brexit Freedoms Bill and wider patterns of government behaviour, as a means of the government grabbing power from parliament (whichever government that may be), rather than facilitating the return of power to the British electorate, which was the big pitch of Brexit.
The new parliamentary session, awash with Brexit related legislation, will be crucial in progressing the government’s environmental commitments. Rather than seeking to fortify and grow the power of the executive, the government must ensure opportunities are provided (and improved) for parliamentary and public engagement on policies that will affect the UK’s democracy and have an impact on our natural environment and global climate change, for decades to come.