Agriculture Bill 2018: Brave New World Or...

The dust has settled a little following the publication and second reading 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...

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