BLOGS / Brexit

Here's how the EU Withdrawal (Repeal) Bill needs fixing

Despite reassurances from Government, the Repeal Bill puts in jeopardy the laws, standards and institutions that protect the healthiness and sustainability of our food, farming and fishing. The coming months will be a maelstrom of political argument and horse-trading. Good food sense is under threat, but must prevail, says Kath Dalmeny of Sustain.

The EU (Withdrawal) Bill, also known as the Repeal Bill, passed its second reading in Parliament this week. It will now start its arcane journey through House of Commons committees and debates, then a protracted ping-pong match of scrutiny, challenge and amendments by the House of Lords, before returning to the House of Commons for further debate, voting and Royal Assent. We are advised that all this could potentially take up to nine months, and it is increasingly clear that the laws, standards and institutions that protect the health and sustainability of our food, farming and fishing remain very much in jeopardy.

The photograph with this article was taken of myself and colleague Malcolm in between one of the many technical discussions I have been privileged to participate in over recent weeks. Our jest on Twitter was, "There's much more than Big Ben that needs fixing." With this article, I seek to share the main factors that I believe deserve our immediate attention and concerted action, and use this to reflect on what Sustain and our members need to do next. The article focuses on two separate but inter-related areas of Repeal Bill work that feel especially important to the Sustain alliance, namely:
 
  • Overarching concerns relating to democracy, scrutiny, rights, institutions, justice, limits to powers and good governance.
  • Concerns specific to healthy, ethical and sustainable food, farming and fishing. 
Four principal themes are emerging, around which a very broad church of third-sector groups are convening to express common concern and champion amendments to the Repeal Bill. Some are being dealt with admirably by others; some will need further attention from Sustain and our alliance colleagues concerned with health, ethics and sustainability in relation to food, farming and fishing.

1. Parliamentary scrutiny

The Repeal Bill needs to embed procedures to ensure that changes to legislation are undertaken through a transparent and accountable process, open to Parliamentary scrutiny. I commend the compelling and influential technical work of the Hansard Society on this important issue, including their proposal for a ‘sift and scrutiny’ process to deal with the mammoth project of amending thousands of pieces of law in an accountable yet practical way. 
 

What will Sustain do, and what can you do?
Sustain will continue to support the work of the Repeal Bill group coordinated by Unlock Democracy, and back amendments proposed by the Hansard Society and others.

We warmly encourage more organisations to sign up in support of Repeal Bill group activity. Even if you lack the capacity actively to take part, adding your organisation to the website, joint letters or statements will be very helpful. Contact the Coordinator Jane Thomas at: jane.thomas@unlockdemocracy.org.uk and follow in Twitter: @fixrepealbill 

2. Limits on executive powers (Henry VIII clause)

The scope of the powers that government gives itself through the Repeal Bill must be clearly limited, and the use of such powers restricted only to ‘functional’ amendments that ensure retained EU law continues to operate with the same scope, purpose and effect after Brexit. The ‘mood music’ from MPs, the media and the debate in Parliament – with concerns expressed by both Brexiteers and Bremainers – seems to lean towards this being an area in which the government might make concessions.
 

What will Sustain do, and what can you do?
Sustain will continue to support the work of the Repeal Bill group coordinated by Unlock Democracy, and back amendments proposed by the Hansard Society, Unlock Democracy, Greener UK and others.

Again, we warmly encourage more organisations to sign up in support of Repeal Bill group activity. Contact the Coordinator Jane Thomas at: jane.thomas@unlockdemocracy.org.uk and follow on Twitter: @fixrepealbill 

3. Institutions and good governance

The likelihood of a ‘governance gap’ is increasingly evident, which is very worrying for health and sustainability in relation to food, farming and fishing. The Repeal Bill must contain a legal commitment for government to ensure that monitoring, enforcement and other duties continue to be overseen either by existing EU institutions; or are replaced by suitably robust, publicly accountable and well-resourced institutions in the UK. Just as one example, if we no longer work directly with the European Food Safety Authority, imagine how much work will need to be inherited by a much denuded UK Food Standards Agency; and by a trading standards service that has slumped from £213m to £124m since 2009, with the number of trading standards staff having reduced by over half during the same period. This would not stand the test of adequate capacity (even to meet current needs, let alone new governance requirements), so the Repeal Bill must be clear on adequate equivalency.

The Greener UK group and Wildlife & Countryside Link are already championing amendments that cover environmental governance. More are needed to cover public health, food safety, standards, working conditions and consumer rights; or perhaps those of the environmental groups could simply be adapted to cover these wider issues. If you have technical or legal expertise that could inform our approach, please get in touch. Otherwise, this seems to be an area of profound uncertainty and concern – for the third sector, businesses and existing institutions. And just like Big Ben, it needs to be fixed.
 

What will Sustain do, and what can you do?
We need to work with Sustain members to help them come forward with their specialist concerns, and back sensible amendments that could remedy the problems. Those who need to hear such concerns and remedies include Ministers, MPs, special advisors and parliamentary committees. If you have specialist knowledge or proposals on the “governance gap”, please get in touch: kath@sustainweb.org

4. Rights and principles

The Equality & Human Rights Commission says that the Repeal Bill as drafted “risks eroding important existing legal protections that are fundamental to the UK’s vision and reputation as a country that values equality and human rights and proper scrutiny of and accountability for changes to laws”. The Repeal Bill in its current form would remove the EU Charter of Fundamental Rights, give powers to the executive to change human rights law without Parliamentary scrutiny, and lacks clarity on case law. The Commission has tabled amendments, and it seems sensible for everyone interested in legal rights to back their expert initiative.
 
On principles, many look set to be lost because they sit in Treaties, not in legislation, so will not be transposed. I commend the work of Greener UK and Wildlife & Countryside Link in championing environmentally-focused amendments that would reinstate into UK law the precautionary principle, the principle that preventive action should be taken, that environmental damage be rectified at source, that the polluter should pay, and access to justice; also that animals are sentient beings. These amendments have already been submitted for consideration by Kerry McCarthy MP.
 
I have also seen some initial work on possible amendments to support public health, which look promising, but more work is needed.
 

What will Sustain do, and what can you do?
Sustain will integrate into our communications and advocacy work the proposals of the Equalities & Human Rights Commission, as we have already done with amendements championed by Greener UK and Wildlife & Countryside Link.

As an individual, if you are a member of a charity or campaign group, now is the time to be sending those messages to MPs. They need to hear that people are concerned.

Please Tweet: ‪Don't let the Repeal Bill mean Bad Food Britain. Write to your MP now to protect good food standards! http://bit.ly/2xbEyBh @fixrepealbill‬ 

Sustain will also need to work with our members and associates to identify any other missing policies or principles. If this affects the issues you work on, please get in touch: kath@sustainweb.org

What about the Devolved Nations?

There is also a thrumming silver strand of concern running through all of such considerations, relating to the UK’s Devolved Nations. To what extent will rule-making be returned to Westminster or devolved to England, Wales, Scotland and Northern Ireland? To what extent will provision be made for cooperation? The only thing that seems clear is the lack of clarity.
 
Especially the Scottish Government, but also the Welsh Assembly, have been flexing their devolved muscles – with control over environment, health, farming, fishing and social policy likely to become battlegrounds. Pity Northern Ireland that they have no sitting administration at such an important time to respond coherently to such a seismic piece of legislation as the Repeal Bill. Hence, Northern Ireland’s unique issues got little attention in the Repeal Bill debate, especially worrying given their crucial status in Round One negotiations over the UK-EU Brexit Deal.
 
A Northern Irish representative in our recent Repeal Bill group meeting also highlighted the need for legal clarity that the Repeal Bill will not undermine the terms of the Good Friday Agreement. This was a sobering reminder that while Sustain discusses food, farming and fishing standards that affect longer-term sustainability, this Bill also has immediate implications for peace and stability between people and nations.

So let's brace ourselves

The stage is now set for potentially beneficial amendments to the Repeal Bill, to bring it closer to how we might like it to be. However, let's brace ourselves. The number of amendments submitted by MPs filled over 60 pages, even within the first few days. There will undoubtedly be many more. This is big constitutional stuff overshadowed by other agendas, political machinations and brinkmanship. We will need to fight hard to get any food, farming and fishing concerns heard at all. Let us remind ourselves that only eight days have been allocated for scrutiny by committee in the House of Commons, and only a small fraction will get debated on the floor of the House; also that some of this time will be used up with MPs making generalised statements of concern or using the time to press for other political gains. Hence, it seems likely that much (too much that we collectively care about) could fall through the cracks. In this context, scrutiny and amendment by the House of Lords becomes ever more important, and it would be wise to focus some of our attention on the scrutiny committees there.
 
We need to work together as never before to be crystal clear about our priorities and proposed remedies; focus on what can be won; and then use all our contacts and creativity to ensure that good food sense prevails.

Kath Dalmeny is Chief Executive of Sustain: The alliance for better food and farming. She convenes Sustain’s Brexit Forum and Time for a Food Act? activities; attends meetings of Greener UK; sat on the steering group to establish a new Food, Farming & Countryside Commission; and is deputy chair of the new Repeal Bill group convened by Unlock Democracy.
 
Additional note: There is also discussion about how the third sector can monitor the details of transposition of legislation and the gargantuan volume of Statutory Instruments to come. There is discussion among lawyers and policy specialists in the environmental sector of how to do so, coordinated through Greener UK and Wildlife & Countryside Link. Sustain itself has no capacity or legal expertise to undertake such tasks for wider health, food, farming and fishing issues; if you are aware of any such relevant initiative undertaken by others that we could support or learn from, get in touch.

14/09/2017
Brexit

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Brexit: We stand at a cross-roads. When the UK leaves the European Union, will our leaders uphold good standards for our food, farming, fishing and trade deals? And will they agree a sensible deal with the EU? We need to make sure that they do!


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