The dust has settled a little following the publication and secondreading on 10 October 2018 of the Agriculture Bill 2018 which now enters the committee stage. Many have referred to the transition period of 7 years for the removal of the BPS support system for agriculture and it is very clear that the current secretary of State for Defra (SoS) has the environment front and centre in his policy for future farming. Much of the coverage has looked at what is, or is not, included in the Government’s policy: there is clear difference between what the bill provides and the aspirations contained in the policy, and the impact of the Parliamentary technicalities on the industry.
Bill contains 25 individual powers
It is fair to say that the bill follows much of modern legislation in that it basically gives the relevant secretary of state the power to regulate to do something. The Bill contains 25 individual powers. The bill only contains 36 sections, 6 of which are effectively boilerplate (that is standard provisions that appear in most bills and statutes). This means that nearly every clause contains a power for the making of new regulations.
Published at the same time as the bill was an explanatory note, identifying the provisions that confer power to make delegated legislation, the Parliamentary process for that legislation, and the reasons for such powers being needed. The note also identifies where the bill contains a “Henry VIII” power (being clauses 5(2), 22(7), 29(3)(c), 32(1) and Schedule 1 Part 3 para 1(1)) . The expression is a reference to King Henry VIII's supposed preference for legislating directly by proclamation rather than through Parliament and may be defined as:
“‘Powers in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny.”
The inclusion of such powers causes a significant shift of power to the executive away from Parliament and, as a consequence, the Lords’ Delegated Powers and Regulatory Reform Committee will carefully scrutinise any such proposals in a bill.
Secondary legislation will underpin UK farming post-Brexit
The act provides for either an affirmative or a negative parliamentary procedure to apply to the relevant subordinate regulation. The affirmative procedure is one where statutory instruments must be actively approved by both Houses of Parliament. The negative procedure is where a statutory instrument becomes law on the day it is signed by the Minister and remains law unless, within 40 sitting days, either House agrees a motion to reject it. The procedure used has important consequences for scrutiny of secondary legislation.
The impact of this means that that much of the statutory law which will underpin UK farming post-Brexit will not be contained in primary legislation but instead will be contained in secondary legislation. The consequence of this is that it is far easier to change secondary legislation than it is to change primary legislation so the industry risks being at the whim of politics.
Here are some examples:
1) Clause 5(2) provides for the SoS to extend the transition period. This power allows the SoS to amend primary legislation. This is justified by the possibility of unforeseen circumstances arising. However the SoS is being given power to intervene in markets in clause 17 of the bill. For instance if budgets are tight it might be more expeditious from a financial point of view to extend the transition period rather than take action to intervene under clause 17, especially where clause 17 is not a legislative power.
2) Clause 20(1) is a legislative power to allow the SoS to set standards for products marketed in England (note not the devolved regions of the UK). The purpose of this power is to ensure that products sold in England meet specified standards. This is clearly an attempt to level the playing field for English producers against importers into England (which could come from the devolved regions). It is hard to see how, with the environmental protection measures intended, English farmers can avoid being at a disadvantage in the face of imports from regions with less stringent environmental and food safety regulations, or which have coupled or direct subsidy systems .
3) The power to impose fair dealing obligations is another statutory power and a rather draconian one in that it seeks political interference between businesses; not something that would generally be expected from a conservative pro-market forces stand point. This is potentially a very significant power to interfere in the food chain and the contractual arrangements between producer and first purchaser.
4) Lastly there is what can only be called a saving provision at clause 32(1) where the SoS can make any changes desired to any primary, secondary or retained direct EU legislation. This is an immensely powerful clause. It gives the SoS the ability to change the law relating to the regulations enacted under the Agriculture Bill once it is assented by the negative procedure and thus mean that farmers could face an ever changing regulatory environment with little or no legislative stability. It is also a particularly broad power to amend any provision of the bill.
Political ideology could drive decision-making
The fear with all the powers being granted to the SoS is that political ideology takes over the decision making processes, and a succession of SoS could see a procession of changes to regulation and policy introducing an unwelcome element of instability to an industry that already has to cope with meteorological uncertainty and market volatility. This should concern us given the likelihood of cheap food imports that will undercut the UK farmer. Indeed it is plain to see that parts of the bill are designed to try and ensure food safety in the face of an onslaught of cheap food imports from around the world. That would suggest that the Government has already decided that agriculture is something that can be given away in pursuit of trade deals. Ultimately only time will tell and we will not see even a glimpse of any secondary regulation until after the bill receives Royal Assent but we must recognise that it is likely that the legislative stability of the CAP will be lost - and the industry will probably still have to deal with the RPA!