By Paul Waugh
Parliament is facing a “mad scramble” to pass Brexit legislation as Theresa May rushes to get the UK’s laws ready in time for exit day next year, Labour has warned.
Nearly 40 pieces of legislation a week are expected to be tabled in the House of Commons and House of Lords from November, as the Government cranks up its preparations after months of stalled talks with Brussels.
Around 150 “statutory instruments” are scheduled for next month and a slightly smaller number will be tabled in every month thereafter until the UK formally quits the EU on March 29, HuffPost UK has learned.
Statutory instruments (‘SIs’) are secondary legislation that allow mainly technical changes to the law, but some of them involve significant policy changes and can be seen as a back-door way for Governments to avoid full scrutiny by peers and MPs.
The EU (Withdrawal) Act, passed earlier this year, copied current EU law and turned it into British statute, but it relied heavily on statutory instruments to make change a reality.
Many of the changes are in agricultural, environmental and business regulations that have been dominated by EU rules.
A special House of Lords ‘sifting’ committee will assess each of the instruments to see which ones can be waved through, and which require an “affirmative procedure” with a debate and vote before they become law.
The pressure to push through more SIs will increase even further if Brexit talks collapse and Whitehall has less than six months to prepare the entire statute book for a no-deal exit.
The Cabinet agreed on Tuesday that it would begin receiving weekly updates on preparations for the UK crashing out of the EU without an agreement, and ministers discussed emergency measures to ship in food and medicines.
A defiant Brexit Secretary Dominic Raab insisted to MPs on Thursday that if the French government reduced freight trade through Calais in a no-deal scenario, the UK would look at alternative ports in Belgium and Holland.
Some preparations in Whitehall have been hampered because the UK still has no agreement with Brussels, more than two years since the EU referendum saw a ‘Leave’ vote.
The Hansard Society think tank this week warned that of the 800 SIs the government estimated it needs for Brexit, just 71 have actually been put before Parliament.
Labour said that while the PM claims that Brexit is 95% complete, the truth is the Government is “failing in the relatively simple task of ensuring we have no legal cliff-edge”.
The party also seized on remarks by senior Tory backbencher Sir Bernard Jenkin, who is reported to have said this week that while some SIs “may need to be rushed through with less consideration, they can always be amended later”.
Shadow Brexit minister Baroness Hayter said: “In recent days there have been suggestions from some Tory Brexiteers that there need not be any panic about the avalanche of secondary legislation required before March 2019, because we can simply rush it through now and make amendments later on.
“But we simply must not rush these instruments through in a mad scramble. Not only would this contradict repeated assurances given by Ministers during the passage of the EU Withdrawal Act, but a failure to get this exercise right could result in the loss of hard-won environmental, consumer and workers’ protections.”
Most Brexit-related SIs are tabled by the Department for Food, Environment and Rural Affairs (DEFRA), run by Michael Gove, and the Department for Business, Enterprise and Industrial Strategy (BEIS).
A Lords committee warned this week that DEFRA was ill-prepared for a no-deal Brexit, with possible chaos ranging from millions of tonnes of waste piling up to foreign fishing fleets entering UK waters unregulated.
Maddy Thimont-Jack, of the Institute for Government, said that Parliament had shown in the past that it had the capacity to handle thousands of SIs per year, but the key issue was their content.
“If most of these changes are technical, for example changing the word ‘EU member state’ to ‘the UK government’, then that’s relatively straightforward. There is a time pressure there, but the difficult question is what’s in the SIs. MPs might want more Parliamentary time.
“It emerged recently that one SI alone from DEFRA was 150 pages long. That raises the question of whether government departments are prepared enough to table them.
“The NAO [National Audit Office] report on DEFRA found that only a third of the SIs are in draft form. It relies on departments being up to speed. That’s why we are looking at this rush now.”
A spokesperson for the Department for Exiting the European Union (DExEU) said: “We remain confident of passing the required number of exit-related statutory instruments before exit day.
“It has always been our plan to increase the number of Brexit SIs being laid throughout the autumn and we are working hard with Parliament to ensure this is manageable.”
Brexit minister Lord Callanan said this week that the number of SIs “might actually be fewer than the figure of 800 to 1,000 that was quoted and that I used many times during the passage of the Act”.
“However, the exact number of SIs needed will depend on a number of factors and the total number is fluctuating; some are able to be combined into one while others will require a number of different individual SIs.”