Third Report of Session 2019-21 Contents

Instruments reported

At the Committee’s meeting on 26 February 2020 it scrutinised a number of instruments. It was agreed that the special attention of the House of Commons should be drawn to one of those considered in accordance with Standing Orders. The instrument and the grounds for reporting it are given below. The relevant departmental memorandum is published as an appendix to this report.

1S.I. 2019/1380: Reported for failure to comply with proper legislative practice

Cross-border Trade (Public Notices) (EU Exit) (Revocation) Regulations 2019

1.1The Committee draws the special attention of this House to these Regulations on the ground of failure to comply with proper legislative practice.

1.2This instrument revokes the Cross-border Trade (Public Notices) (EU Exit) Regulations 2019 (S.I. 2019/1307) which were due to come in to force on exit day as a concern was expressed over the legality of those Regulations as drafted. Exit day was 31 January 2020 and the regulations came in to force on 25 January 2020. The Committee asked Her Majesty’s Revenue and Customs to explain why a commencement date was not chosen that would, while revoking S.I. 2019/1307 before the then exit day, have preserved the House of Commons’ ability to consider annulment in accordance with section 5 of the Statutory Instruments Act 1946 before the revocation had occurred.

1.3In a memorandum printed in the Appendix, the Department does not address the question. The Committee accepts the urgency of this instrument but believes that the proper legislative practice would have been to apply a commencement date of, for example, 30 January 2020 which would have allowed five days to accommodate the House of Commons’ statutory right to annul the instrument before the revocation occurred, without defeating the object or urgency of the instrument. (The Committee notes that this would also have had the effect of breaching the 21-day rule to the minimum extent required.) The Committee recognises that it would still have been possible in theory for the House of Commons to annul the instrument after the revocation had occurred, but that would have raised difficult issues about the effect of an original instrument where a revoking instrument is annulled after it has come into force. The Committee accordingly reports these Regulations for failure to comply with proper legislative practice.

Published: 28 February 2020