Agriculture Bill: House of Lords Delegated Powers and Regulatory Reform Committee 34th Report of Session 2017-19
Agriculture Bill: House of Lords Delegated Powers and Regulatory Reform Committee 34th Report of Session 2017-19
Agriculture Bill: House of Lords Delegated Powers and Regulatory Reform Committee 34th Report of Session 2017-19
Agriculture Bill
HL Paper 194
The Delegated Powers and Regulatory Reform Committee
The Committee is appointed by the House of Lords each session and has the following terms of
reference:
(i) To report whether the provisions of any bill inappropriately delegate legislative power,
or whether they subject the exercise of legislative power to an inappropriate degree of
parliamentary scrutiny;
(ii) To report on documents and draft orders laid before Parliament under or by virtue of:
(a) sections 14 and 18 of the Legislative and Regulatory Reform Act 2006,
(b) section 7(2) or section 19 of the Localism Act 2011, or
(c) section 5E(2) of the Fire and Rescue Services Act 2004;
and to perform, in respect of such draft orders, and in respect of subordinate provisions orders made
or proposed to be made under the Regulatory Reform Act 2001, the functions performed in respect
of other instruments and draft instruments by the Joint Committee on Statutory Instruments; and
(iii) To report on documents and draft orders laid before Parliament under or by virtue of:
(a) section 85 of the Northern Ireland Act 1998,
(b) section 17 of the Local Government Act 1999,
(c) section 9 of the Local Government Act 2000,
(d) section 98 of the Local Government Act 2003, or
(e) section 102 of the Local Transport Act 2008.
Membership
The members of the Delegated Powers and Regulatory Reform Committee who agreed this
report are:
Baroness Andrews Lord Moynihan
Lord Blencathra (Chairman) Lord Rowlands
Lord Flight Lord Thomas of Gresford
Lord Jones Lord Thurlow
Lord Lisvane Lord Tyler
Registered Interests
Committee Members’ registered interests may be examined in the online Register of Lords’
Interests at www.publications.parliament.uk/pa/ld/ldreg.htm. The Register may also be
inspected in the Parliamentary Archives.
Publications
The Committee’s reports are published by Order of the House in hard copy and on the internet
at www.parliament.uk/hldprrcpublications.
General Information
General information about the House of Lords and its Committees, including guidance to
witnesses, details of current inquiries and forthcoming meetings is on the internet at http://
www.parliament.uk/business/lords/.
Historical Note
In February 1992, the Select Committee on the Committee work of the House, under the
chairmanship of Earl Jellicoe, noted that “in recent years there has been considerable disquiet
over the problem of wide and sometimes ill-defined order-making powers which give Ministers
unlimited discretion” (Session 1991–92, HL Paper 35-I, paragraph 133). The Committee
recommended the establishment of a delegated powers scrutiny committee which would,
it suggested, “be well suited to the revising function of the House”. As a result, the Select
Committee on the Scrutiny of Delegated Powers was appointed experimentally in the following
session. It was established as a sessional committee from the beginning of Session 1994–95. The
Committee also has responsibility for scrutinising legislative reform orders under the Legislative
and Regulatory Reform Act 2006 and certain instruments made under other Acts specified in
the Committee’s terms of reference.
Thirty Fourth Report
AGRICULTURE BILL
1 Department for Environment, Food and Rural Affairs, Agriculture Bill Delegated Powers
Memorandum, paras 6 and 7.
2 Schedules 3 and 4 to the Bill set out law-making powers conferred on Ministers in the governments
of Wales and Northern Ireland that are broadly similar to many of the powers in the Bill that are
exercisable by the Secretary of State in England.
2 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
3 Relating to new sector-specific provision in regulations made under clauses 22 and 23.
4 Clause 7 gives power for the Secretary of State to phase out direct payments during an “agricultural
transition period” set, in clause 5(1), at seven years starting with 2021 and extendable. This power
will make way for other financial assistance schemes under clause 1. It is a transitional provision, not
a sunset clause.
5 See further para 14 below.
DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 3
• Powers for the Secretary of State to legislate for the UK to comply with
the World Trade Organisation (WTO) Agreement on Agriculture.
6. 17 of the 26 delegated powers allow for regulations to be made by the
affirmative procedure. This is a high proportion by the standards of most
bills. However, the affirmative procedure offers nothing like the scrutiny
given to a bill. A bill typically goes through several substantive stages in
each House and can be amended. An affirmative statutory instrument is
unamendable during its making and is debated once in each House. The fact
that Defra proposes to make so many classes of affirmative instrument in the
Agriculture Bill is an acknowledgment that the Bill covers matters of great
importance to farmers, the food industry and consumers. The Bill provides
an extensive framework for a wholly new agricultural regime. And yet the
Bill is very short on matters of substance.
7. The Delegated Powers Memorandum says:
“This memorandum includes examples of how the powers might be
used. One of the reasons for taking delegated powers is that this Bill
will be before Parliament before the terms of the UK’s withdrawal from
the EU are known, and while full-scale design of future farming policy
is under development in consultation with stakeholders and the sector.
Any examples used in this paper are therefore illustrative of the way
the powers could be used and do not represent confirmed plans at this
stage.”6
8. We have made it clear that if a bill is wholly or mainly a skeleton bill, we
will expect a full justification for the decision to adopt that structure of
powers.7 Given the significant delegation of powers in this Bill, we did not
find convincing the Government’s attempted justifications that consultation
is ongoing and that there is not yet a withdrawal agreement. The Agriculture
Bill could have contained more detail than it does. There could have been
more statutory consultation as a pre-condition to making subordinate
legislation. The subject-matter of clause 20 (marketing standards and carcass
classification) is worth a bill on its own. As for the structure of the powers
in the Bill being justifiable because it is being debated before the withdrawal
agreement has been finalised, we disagree. The Government have committed
to legislating to give effect to any withdrawal agreement. At that stage, any
necessary changes to the Agriculture Bill can be made. The existence or
otherwise of a withdrawal agreement is not an argument for giving Ministers
so many law-making powers in a bill that offers so little substantive detail.
6 HMG has issued a policy statement and two press notices which give some information: ‘The future for
food, farming and the environment’ (13 September 2018): https://www.gov.uk/government/publications/
the-future-for-food-farming-and-the-environment-policy-statement-2018 [accessed 17 October
2018]; ‘Landmark Agriculture Bill to deliver a Green Brexit’ (12 September 2018): https://www.gov.uk/
government/news/landmark-agriculture-bill-to-deliver-a-green-brexit [accessed 17 October 2018] and
‘UK Government Agriculture Bill - Scotland myth-buster’ (13 September 2018): https://www.gov.uk/
government/news/uk-government-agriculture-bill-scotland-myth-buster [accessed 17 October 2018].
7 See para 36 of our Guidance for Departments issued in 2014.
4 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
9. It is true that the extensive powers in this Bill largely replace directly
applicable EU regulations. But the practical effect of the Bill is that
very considerable repatriated powers are momentarily returning to
Parliament on exit day only to be immediately granted to Ministers
of the Crown.
management and monitoring of the CAP (clause 9) and support for rural
development (clause 11).
14. During the passage of the European Union (Withdrawal) Act 2018,
Ministers came under sustained criticism for taking powers to make law that
they considered “appropriate” (rather than necessary) to correct deficiencies
in retained EU law arising from the United Kingdom’s withdrawal from the
EU. At least section 8(2) and (3) of that Act gives an exhaustive definition of
what counts as a deficiency in retained EU law. By contrast, the “simplify or
improve” test in clauses 6, 9 and 11 of the Agriculture Bill gives the Minister
a much wider discretion than does the “appropriate” test in the European
Union (Withdrawal) Act 2018. It allows Ministers to do what they like,
providing they consider it a simplification or improvement. The Government
acknowledge that the powers under clauses 6, 9 and 11 can significantly
increase bureaucratic burdens providing they qualify as improvements or
simplifications.9 Indeed, something could qualify as a simplification even if
not amounting to an improvement, and vice versa.
15. In the context of clause 6, the Government’s expressed intention is only
to make “technical changes” to the basic payment scheme. The negative
procedure is justified on the ground that the amendments will “largely be
minor or technical simplification measures”.10 But this restriction does not
appear on the face of the Bill. The delegated powers in clauses 6, 9 and 11
allow for much more than minor or technical simplifications. The powers
allow highly controversial and indubitably major “improvements”.
16. We regard the “simplification or improvement” test in clauses 6,
9 and 11 as inappropriate. It is a highly subjective test. A clearer,
more focused and proportionate test is required. If the delegated
powers in clauses 6, 9 and 11 will largely be for “minor or technical”
simplification measures, the Bill should say so.
9 Department for Environment, Food and Rural Affairs, Agriculture Bill Delegated Powers
Memorandum, paras 29 and 45.
10 Ibid., paras 32 and 60.
6 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
Attendance
The meeting on the 17 October 2018 was attended by Baroness Andrews,
Lord Blencathra, Lord Jones, Lord Lisvane, Lord Moynihan, Lord Rowlands,
Lord Thomas of Gresford and Lord Tyler.
The Chairman recused himself from the deliberation and took no part in it because
of his role as Deputy Chairman of Natural England.