At its meeting on 12 September 2018 the Committee considered proposed negative instruments laid by the Government and has recommended that the appropriate procedure for the following instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before they are made (i.e. the affirmative procedure).
1.1 The Cat and Dog Fur (Control of Import, Export and Placing on the Market) (EU Exit) Regulations 2018 are intended to maintain the existing prohibition on the import, export and placing of cat and dog fur on the market in the United Kingdom, as well as maintaining the criminal penalties currently in place for individuals breaching this prohibition, after the UK leaves the EU. The Regulations are required to amend or remove references to the EU, the European Commission and EU laws that will no longer be appropriate in the UK after exit.
1.2 The current EU regulation allows the Commission, by way of derogation, to adopt measures allowing the placing on the market or the import or export of cat and dog fur or products containing such fur for educational and taxidermy purposes. Paragraph 4 of Schedule 1 of the Regulations confers a power on the Secretary of State to make regulations (by negative resolution procedure) which maintain these powers.
1.3 It is arguable that the effect of transferring the powers to make regulations in this area, from the Commission to the Secretary of State, constitutes the creation or amendment of a power to legislate, which would make it mandatory for these Regulations to be subject to the draft affirmative resolution procedure as set out in Paragraph 1(2) of Schedule 7 to the European Union (Withdrawal) Act 2018.
1.4 The Committee believes that, regardless of whether the mandatory statutory requirement has been met or not, the inclusion in regulations of a power for the Secretary of State to legislate by negative procedure warrants as a general rule the use of the draft affirmative resolution procedure for the enabling instrument.
1.5 The 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.
Published: 14 September 2018