Parliament's scrutiny committee gives business five days to spot the Government's Brexit blunders

London is in the midst of a heatwave but a storm has hit Westminster. The Government has begun publishing the draft statutory instruments (SIs) it intends to adopt using its new delegated power in the European Union (Withdrawal) Act 2018 (EUWA 2018) to correct deficiencies in retained EU law post-Brexit.

These draft SIs, which are appearing at a rate of around four a day, with around 800-1,000 expected to be published in total before March 2019, make changes to a wide range of existing legal and regulatory frameworks in the UK. Every business and individual in the UK is likely to be impacted by the changes in some way. For example, the SIs published to date, if adopted, will:

  • transfer functions performed by the European Securities and Markets Authority (ESMA) relating to the recognition of third country central counterparty clearing houses to the Bank of England.
  • alter the regime for the monitoring and verification of carbon dioxide emissions by merchant ships at ports in the UK post-Brexit to take account of the UK's withdrawal from the EU.
  • make technical changes to various existing rules relating to areas as diverse as health and safety law, animal welfare, the licensing of legally harvested timber, civil aviation, and postal and parcel services.

Owing to the number of SIs needed and the limited time available, many of these changes are being proposed without the Government first having conducted full consultations. Mistakes and/or unintended consequences as a result of these changes are inevitable, and many may not be obvious on the face of the often technical textual changes to existing legislation.

Under the EUWA 2018, the House of Lords Secondary Legislation Scrutiny Committee (SLSC) is responsible for scrutinising the SIs made under the EUWA 2018. On 20 July 2018, the SLSC published a report setting out the process by which it intends to do so, including its new terms of reference.

The SLSC has stated that anyone who wishes to provide constructive criticism of any proposed SI to the SLSC should do so by email (hlseclegscrutiny@parliament.uk) as soon as possible and ideally within five working days of the SI being laid before Parliament.

Businesses who wish to avoid the risk of costly legal challenges to inappropriate and unlawful changes brought about by Brexit SIs should be keeping a keen eye out for issues with the Government's proposed approach in their sector and be ready to react quickly, so as to get the Government to think again before the SIs become law.