Appendix
S.I. 2019/38
Credit Institutions and Insurance Undertakings Reorganisation and Winding Up (Amendment) (EU Exit) Regulations 2019
1.The Committee has asked, in relation to the above instrument, for a memorandum on the following point:
How did this instrument come to be made without a commencement date being included in regulation 1(2), and what does the Department propose to do to correct the situation?
2.With one exception, this instrument comes into force on exit day, as defined by the European Union (Withdrawal) Act 2018. That one exception concerns the amendment made by regulation 3(2)(b), which together with regulation 1(2) is the subject of the error that the Committee has identified. Regulation 3(2)(b) amends existing subordinate legislation to cross-refer to existing directly effective EU law. Because directly effective EU law will form part of domestic law from exit day, the cross-reference needs to distinguish between its current form (i.e. as EU law) and its future form (i.e. as retained EU law).
3.The word “date” in square brackets should have been removed, and replaced with a specified date 21 days after the laying date. This did not happen due to an oversight in the Treasury’s checking process and the Treasury apologises that this matter was not detected and corrected before the SI was made and laid, with the result that regulation 3(2)(b) automatically (but inadvertently) came into force on the day that this instrument was made.1 The other substantive provisions of the instrument will come into force on exit day, and no individuals or businesses have been negatively affected by this one element of the instrument coming into force early.
4.The Treasury apologises for this error and we will ensure that our checking processes are applied rigorously in future to minimise the risk of a similar mistake recurring.
5.The Treasury intends to correct this error by amending this instrument so that “on [date]” is replaced with “when these regulations are made”. This correction will ensure that, in the interests of transparency, any reader of the instrument can see when it in fact came into force. The correction will be made via the draft Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations, which were published for sifting on 11 February 2019.
HM Treasury
12 February 2019
1 Paragraph 1.3.5 of Statutory Instrument Practice provides that when no coming into force date is specified, the default assumption is that an SI comes into force at the moment of making.
Published: 22 February 2019