First Report of Session 2017–19 Contents

Instruments recommended for the affirmative procedure

At its meeting on 5 September 2018 the Committee considered proposed negative instruments laid by the Government and has recommended that the appropriate procedure for the following instruments is for a draft of them to be laid before, and approved by a resolution of, each House of Parliament before they are made (i.e. the affirmative procedure).

1The European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018

1.1The European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018 amend provisions deriving from EU legislation (Council Regulation (EC) No 723/2009 of 25 June 2009), “the ERIC Regulation”. The ERIC Regulation sets out the legal framework under which an ERIC is created and operates. ERICs are organisations or structures set up to deliver major international science and research collaborations in the EU, in which the Government states it is “crucial” that the UK retains the ability to participate.

1.2The Committee notes the Government’s Explanatory Memorandum which states that the Regulations amend “provisions which are inappropriate or redundant as a result of the withdrawal of the UK from the EU.” The Government further argue that this does not represent a policy change and will ensure that ERICs will continue to have the same attributes as they had under the ERIC Regulation before exit day. However, the Committee believes that further explanation is necessary on how the ERIC Regulation, as it forms part of retained EU law, will facilitate UK membership as a non-EU Member State in these consortia after the UK has left the EU. While it can be argued that the policy has not changed, future UK participation as a third country will inevitably mean that the policy functions in a different context.

1.3The Committee also notes the continued, albeit limited, role for the European Court of Justice in adjudicating on the granting of ERIC status and assessing compliance with the rules of ERIC itself. This is an area the House may wish to explore further.

1.4The Committee therefore recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of political and legal importance.

2The Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2018

2.1Unlike flag flying from Government buildings in the rest of the United Kingdom (which is advised by the Department for Digital, Culture, Media and Sport, on an annual basis, via a list of designated flag flying days), flag flying from Northern Ireland Government buildings is regulated by the Flags Regulations (Northern Ireland) 2000 (‘the 2000 Regulations’) (as amended).

2.2The Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2018 are required as it would be inappropriate and unnecessary to retain the legal obligation to observe Europe Day in Northern Ireland once the United Kingdom ceases to be a member of the European Union. In addition, the instrument will also ensure that Northern Ireland reflects custom and practice in the rest of the United Kingdom regarding Europe Day, which will cease to be a designated day in Great Britain following the United Kingdom’s withdrawal from the European Union. The non-legislative guidance for Great Britain will be updated to reflect this position.

2.3The issue of flags in Northern Ireland is of legal and political sensitivity. The Committee notes that as a matter of policy there is nothing contentious in the amendments proposed by this instrument, and that they make only the obvious and necessary consequential changes to reflect Brexit. However, the Committee believes that, given the political sensitivity, the House would wish to have the opportunity of satisfying itself of that fact through affirmative resolution scrutiny and debate.

2.4The Committee therefore recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of political and legal importance.

3The Postal and Parcel Services (Amendment etc.) (EU Exit) Regulations 2018

3.1The Postal and Parcel Services (amendment etc.) (EU Exit) Regulations 2018 amend provisions in the Postal Services Acts 2000 and 2011 and revoke the EU Parcel Delivery Regulation, the Postal Services Regulations 1999 and Commission Decision of 10 August 2010. Specifically, these Regulations remove references to the Postal Services Directive 979/67/EC in the Postal Services Act 2000 as the UK will no longer be subject to the terms of the Directive once it withdraws from the EU.

3.2The effect of the Regulations is largely confined to the removal of redundant references to EU legislation, which is of a sufficiently minor effect to rebut presumption of the use of the affirmative procedure. However, the Committee notes that the Regulations revoke the European Commission’s Decision of 2010, which established the European Regulators Group for Postal Services (‘ERGP’). The Explanatory Memorandum specifies part of the role of that group as facilitating consultation, coordination and cooperation between Member States on postal services. The revocation of the Decision may be a necessary consequence of the UK leaving the EU, but the Committee believes that the Government should provide further information on the effect of the UK’s non-participation in that group, and possible alternatives for future arrangements, recognising that the UK will maintain an interest in an effective postal and parcel service between the UK and the EU after it ceases to be a Member State. These are issues that the Committee believe should be debated.

3.3The Committee recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of political importance.

4The Trade Barriers (Revocation) (EU Exit) Regulations 2018

4.1The Trade Barriers (Revocation) (EU Exit) Regulations 2018 revokes EU Trade Barriers Regulation 2015/1843 (“the TBR”) which establishes processes for European Commission prioritisation and decision-making on trade barriers.

4.2The Committee notes the Government’s evidence that the TBR has been used infrequently as a way to resolve trade barriers and “will be superseded by new UK market access processes” that “will come into force when the UK leaves the EU, rendering the TBR redundant in the new UK context.” Further, the Government says that the policy intention is to provide a clear, non-statutory route for UK businesses to report market access barriers they encounter, including through the exploration of digital solutions. The Committee believes that Members will want to scrutinise the transition to resolution of trade barriers through non-statutory provisions further and that the issues raised are of sufficient political sensitivity and commercial and economic importance to warrant debate.

4.3The Committee also note that the Minister’s Opinion is based on an extremely narrow interpretation of the criteria for deciding on the appropriate procedure. We expect the Government to provide more information than simply confirming that the regulations do not implement changes specifically disallowed under the ‘negative procedure’ in the EU (Withdrawal) Act 2018. The criteria that the Committee will apply is based on the work of the Procedure Committee in the House of Commons, and is clearly set out in the Report of that Committee. A similarly expansive view is being taken by the Secondary Legislation Scrutiny Committee in the House of Lords, as set out in its Report on its working practices. The Committee expects all Government departments to have regard to the criteria for deciding on the appropriate procedure set out by both Houses and to provide adequate information and reasons in the form of Minister’s Opinions, in line with its statutory duties, to allow the ‘sifting’ Committees to conduct their work effectively.

4.4The Committee recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of political and legal importance.





Published: 7 September 2018