Thread by @RuthFox01

🧵1/ In his final newsletter of the year @pmdfoster suggests if you're interested in the #REUL Bill then you should read the evidence that I and @SirJJKC gave last month to the @UKHouseofLords Secondary Legislation Scrutiny Committee.

https://twitter.com/pmdfoster/status/1605975829736853515

2/ For all the talk by ministers that the process to review Retained EU Law will be straightforward, 2 SIs published this week illustrate the risk of sunset deadlines and how the review process will involve grindingly difficult technical policy & legislative drafting work.

3/ The two SIs are the Plant Health & Trade in Animals and Related Products (Amendment) Regulations 2022 and the Health and Safety and Nuclear (Fees) Regulations 2022). It's complicated, so bear with me......

4/ Both SIs have been made into law this week using the 'urgent' made affirmative procedure (the same procedure used commonly during #Covid) due to the imminent sunsetting of the relevant EU (Withdrawal} Act 2018 (EUWA) powers on 31 December.

5/ First plant health... An EU regulation on protective measures against pests of plants was incorporated into domestic law under S3 of EUWA. The resulting Plant Health Regulations have since been amended by at least two further UK Statutory Instruments.

6/ After a recent pest outbreak near the Wales/England border, officials have discovered a problem with the Plant Health Regs. They do not provide for a competent authority in one territory of GB to establish a demarcated area based on discovery of a pest in another territory.

7/ So, if a pest was identified in England, near the Scottish border, a notice to demarcate the area could only be issued on the English side of the border by the appropriate English authority. Scotland couldn’t implement a demarcated area based on pest findings in England.

8/ This risks the pest spreading. As the Government’s Explanatory Memorandum sets out, the new Regs introduced this week are needed to ‘ensure the continued functioning of phytosanitary controls within GB, and between relevant third countries and GB’.

9/ The Govt lay the Regs before Parliament on 19 Dec and they came into force the following day. Ministers have used the urgent ‘made affirmative’ procedure (the same procedure used commonly during Covid) so Parliament has to scrutinise them retrospectively by 3 Feb 2023.

10/ Why the urgency? Because the relevant powers in the EU (Withdrawal) Act 2018 (EUWA) which are needed to address deficiencies covered by the Regs will expire at the end of this month (31/12/22).

11/ Similarly, the Nuclear (Fees) Regulations 2022 are also being rushed through because of the imminent sunsetting of the EUWA powers at the end of the year. The Regs were made on 19 Dec, laid before Parliament on 20 Dec and came into force on the 21 Dec.

12/ The Regs revoke & replace the Health and Safety and Nuclear (Fees) Regulations 2021. The Chemicals (Health and Safety) Trade and Miscellaneous Amendments Regulations 2022 had already amended the 2021 Regs so consequently the Chemicals Regs also need to be amended as well.

13/ The original 2021 and 2022 amending Regulations were supposed to provide for the Health & Safety Executive and the Office of Nuclear Regulation to charge fees for a range of functions, including those carried out following Brexit, in order to recover their costs.

14/ However, several drafting errors were made in the Regs and the consent of HM Treasury to the charging of fees by these bodies was not sought in advance as is required by law. So, the new Regs are needed to correct these errors and to ensure Treasury consent has been secured.

15/ The new Regs are being made under powers in three Acts of Parliament: the Health & Safety at Work etc Act 1974, the Energy Act 2013 and EUWA 2018. But the relevant power in Para 1 of Schedule 4 of EUWA expires on 31 December hence the urgency.

16/ The Govt says that if this deadline is missed it would be 'impossible to re-instate the provisions for fees charged for certain functions the Health and Safety Executive carries out following EU exit and an amendment to primary legislation would be required.'

17/ So, four years after EUWA achieved Royal Assent problems are still being found and correcting Regulations made. These are just two sets of Regulations, in two distinct areas of policy but they involve at least four other regulations and are made using powers in three Acts.

18/ The idea that several thousand #REUL regulations can be reviewed, and all the consequential amendments that might be needed as a result of that review can be captured by the end of December 2023 or even 2026 is not realistic.

19/ Remember, changes made under the EU (Withdrawal) Act were to correct technical deficiencies on the statue book. The changes arising from the #REUL Bill will be far more politically significant as they will make changes to policy.

20/ If errors and costly mistakes are made, and administrative difficulties emerge, the end result will be more emergency legislation to patch up the problems, with parliamentary scrutiny once again marginalised.

21/ As highlighted in evidence to the Secondary Legislation Scrutiny Committee, the Government's objectives could be pursued in a less risky fashion. Between us @SirJJKC and I highlighted different ways it could be done. committees.parliament.uk/oralevidence/1…

22/ Given the Govt's concerns about the lack of parliamentary time for multiple pieces of primary legislation (the preferable option) I suggested ways the #REUL Bill could be amended to achieve the Govt's objectives & in a way that better respects Parliament's scrutiny role. END