At its meeting on 20 November 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 it is made (i.e. the affirmative procedure).
3.1 This instrument amends regulation EC No 2003/2003 (“the EU Regulation”) which lays down rules on the designation, definition, composition, identification and packaging of EC fertilisers which can be freely traded throughout the EU.
3.2 The Explanatory Memorandum (EM) states that the instrument “will replace the ‘EC fertiliser’ regime in EU law with a new domestic regime, providing for a ‘UK fertiliser’ label which will function in the same way. It will also allow a two-year transitional period during which ‘EC fertilisers’ can still be sold in the UK without a requirement to be relabelled, to ensure continued supply and reduce burdens on businesses”.
3.3 Schedule 7 to the EU (Withdrawal) Act 2018 (“the Act”) sets out four criteria that would require a statutory instrument made under section 8(1) to be laid under the affirmative procedure. These include that the instrument:
3.4 The Committee is concerned that these criteria appear to be met in relation to this instrument, notwithstanding the fact that additional provisions relating to fees and powers to legislate are envisaged and will be contained in a separate instrument.
3.5 The effect of regulation 5(13) is that the Secretary of State, the Welsh Ministers, the Scottish Ministers and the Northern Ireland Department of Agriculture, Environment and Rural Affairs will be permitted to charge fees to cover the cost of tests needed for official control measures they have imposed on UK Fertilisers. Although this fee-charging power already exists (in relation to member States) in the EU Regulation, the criterion in Schedule 7 does not require that an instrument creates a new fee, merely that it “relates to” a fee. This is sufficient to make the instrument mandatory affirmative under paragraph 1(2)(b) of Schedule 7 to the Act.
3.6 In addition, the effect of regulation 5(3)(b)(iv) is to confer on public authorities listed above the power to prescribe how the contents of fertilisers placed on their respective markets are expressed, to prohibit or place conditions on the placing on the market of specified fertilisers, and to subject UK fertilisers to official control measures. These appear to the Committee to be powers to legislate.
3.7 In the Committee’s view, a provision that changes the basis on which a public authority has power to legislate is caught by the wording of paragraph 1(2)(a) or (d) of Schedule 7 to the Act. To the extent that the authorities listed above already exercise the powers conferred by the EU Regulation, it is on the basis that powers are conferred in respect of the United Kingdom as a member State. Regulation 5(3)(b)(iv) has the effect of conferring the power to legislate directly on those Ministers in their domestic ministerial capacity. This is sufficient to make the instrument subject to mandatory draft affirmative procedure under paragraph 1(2)(a) or (d) of Schedule 7 to the Act.
3.8 Additionally, the Committee is concerned about the impact of the amendments made by regulation 8 to safety regulations governing the import of ammonium nitrate materials from outside the EU. The Committee expects that where such a change is made, the EM should be more explicit in setting out the government’s approach and the anticipated practical impact on safety standards. Paragraph 7.2 of the EM states only that the instrument “ensures that all ammonium nitrate fertilisers are subject to these rules”.
3.9 Finally, the Committee draws the attention of the House to the Minister’s ‘sifting’ statement (the requirement of which is set out in paragraphs 3(2)(a) and 3(3) of Schedule 7 to the European Union (Withdrawal) Act 2018), which states that the proposal should be subject to the negative procedure because “the contents of the instrument are not of such significance that Parliament would expect to debate it”. This may be the opinion of the Minister, but the Committee requires an evidential basis, not provided by the Department’s memorandum, to support the Minister’s assertion.
3.10 The 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 grounds that it appears to fall within paragraph 1(1) of Schedule 7 to the Act and that it is of legal importance.
Published: 22 November 2018