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EU rules into UK law: How's that going?

By Sebastien Ash
BBC Political Research Unit

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  • Brexit
image captionThe UK will take over the policing of the ban on the dog fur trade

Civil servants are working overtime to avoid a 'legal cliff edge' after Brexit.

There are currently about 12,000 EU regulations in operation in the UK.

The government plans to copy over the vast majority of them word-for-word into UK law on 29 March, the day the UK leaves the European Union for good.

But some of these EU laws will need to be modified before being transferred across to prevent any "black holes" from appearing in the statute book - changes which are being made by statutory instruments.

What is a statutory instrument?

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Many acts of Parliament grant powers to government ministers to set the rules for different areas of life.

They do this by laying a statutory instrument before parliament, which sets out the precise rules they want to implement - often on very technical and specific issues.

So, for example, a statutory instrument was used last year to modify the forms used to apply for a shotgun licence.

MPs can still have a say though. Most statutory instruments have to go through either the "negative procedure" or the "affirmative procedure" of scrutiny.

Under the negative procedure the statutory instrument will come into force automatically unless MPs or Lords force a vote to block it. With the affirmative procedure both Houses of Parliament have to vote to approve the statutory instrument.

The original draft of the EU Withdrawal Bill ministers would have been given wide ranging powers to change retained EU law, as well as other acts of parliament through "Henry VIII powers".

MPs tabled an amendment to reduce the scope of these powers and create a new committee in the Commons to keep an eye on any proposed changes.

The top civil servant in the Department for Exiting the European Union, Philip Rycroft, told a select committee hearing on 4 September that "almost 800" statutory instruments still need to go through the system to make the statute book operable.

Mr Rycroft said that this was "possible to achieve but there is a lot of work to do to manage that".

Many of these refer to EU institutions or agencies that the UK will no longer have a relationship with after it leaves.

Where these mentions arise a change needs to be made to ensure that the UK statute book is fully operational. Others do not, and it's this that has got MPs on their guard.

Where it grants new legal powers to a government body, introduces new fees, creates or widens the scope of a criminal offence, or changes government's powers to legislate, the statutory instrument will be subject to what's known as the affirmative procedure - a motion to allow it will be debated and voted on in both houses of Parliament.

But in other cases, where no vote is automatically required, Parliamentarians want to make sure nothing slips through the net.

The two houses of Parliament traded amendments during the passage of the EU Withdrawal Act before settling on a sifting system for changes to retained EU legislation.

In the Lords it's the long-standing Secondary Legislation Scrutiny Committee that will take over responsibility for sifting through the changes, while in the Commons a new European Statutory Instruments Committee had to be established.

Is there enough time?

But the Commons procedure committee has expressed concern that government is not giving MPs enough time to scrutinise proposed changes.

Charles Walker, the chair of the committee, has called for an "even flow" of statutory instruments to give the European Statutory Instruments Committee sufficient time work through the proposed changes.

"Departments must resist the human temptation to always push up against the deadline," he said.

A recent report by the National Audit Office raised significant concerns about the ability for Defra to present all of its Statutory Instruments before a potential no-deal exit on 29 March 2019.

In the first week back after party conferences, the European Statutory Instruments Committee did not meet to consider any new statutory instruments and inspected only eight this week.

What changes are being made?

The European Statutory Instruments Committee has produced three reports, inspecting 36 statutory instruments, of which five were recommended for debate and an affirmative motion in Parliament.

The government has yet to disregard any of the committees recommendations but these exceptions show the pitfalls of tweaking EU law to make it work for the UK outside the club and the manifold ways in which the EU touches lives in Britain.

Dog and cat fur

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The change proposed by the government switches responsibility for regulating the cat and dog fur trade from the European Commission to the UK environment secretary.

Some exceptions can be made to the ban on the trade in cat and dog fur. For example, when pelts are being used for educational purposes or when deceased animals are preserved by a taxidermist.

The ability to grant those exemptions amounts to a new power for the environment secretary and so, under the committee guidelines, the affirmative procedure is required.

Postal and parcel services

The government is seeking to get rid of a number of references to bodies that the UK will no longer be a part of outside the EU, in this instance when it comes to the post and parcel services.

With the growth in internet shopping and increasing parcel volumes moving across borders, the group, the European Regulators Group for Postal Services, helps regulators coordinate their efforts and harmonise their rules to facilitate passage from A to B.

But the committee wants to give Parliament an opportunity to discuss the consequences of leaving these coordinating groups and possible future alternatives.

Some countries, like Switzerland, participate in the European Regulators Group for Postal Services as observers, an option that MPs might wish to explore if they get the opportunity to discuss it.

The European Research Infrastructure Consortium

ERICs, as they are known, are organisations that deliver international science and research collaboration.

The government's statutory instrument sets out the legal framework under which these would continue to operate in the UK after exit day, keeping the door open for the UK to participate as a non-member in EU projects.

In its decision the European Regulators Group for Postal Services argued that Parliament needed to be given the chance to debate the hows and whys of the UK's future participation in such projects.

Flags in Northern Ireland

Understandably, the government will no longer ask government buildings to observe Europe Day by flying the EU flag once the UK has left.

A statutory instrument is needed to eliminate this provision but the committee believes that, given the sensitive political situation in Northern Ireland, MPs should be given the chance to discuss the matter before new rules come into effect.

Trade barrier scrutiny

The European Commission created a pathway for companies and member states to raise concerns about trade barriers in non-EU countries.

The UK says this was infrequently used and wants to establish a new process in the UK instead of transporting this old system over.

The committee isn't satisfied with this promise and wants MPs to air their views on a matter of "sufficient … commercial and economic importance to warrant debate."

What now?

The recommendations made by the committee are not binding on the government.

Ministers are obliged to make a statement explaining their reasoning to the house if they decide not to follow their advice.

Otherwise, MPs must pass their own resolution if they wish to reverse a negative statutory instrument within 40 sitting days.

They have until 29 March to get the other 800 or so done.

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