Instruments reported
At its meeting on 20 March 2019 the Committee scrutinised a number of Instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to four of those considered. The Instruments and the grounds for reporting them are given below. The relevant Departmental memoranda, are published as appendices to this report.
1S.I. 2019/279: Reported for failure to comply with Statutory Instrument Practice
Environmental Impact Assessment (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2019
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that in one respect it does not comply with Statutory Instrument Practice.
1.2The sole purpose of this instrument is to revoke and replace an earlier instrument which was found to be defective. According to Statutory Instrument Practice, this instrument should have been made available free of charge to all known purchasers of the earlier instrument and should have borne an italic headnote stating that that was so. There is no such headnote on this instrument.
1.3In a memorandum printed at Appendix 1, the Department for Environment, Food and Rural Affairs states that it made the instrument on behalf of the Department of Agriculture, Environment and Rural Affairs in the absence of a Northern Ireland Executive. The Department became aware of the drafting error at the time that the instrument was submitted for registration. It rightly says that the correct thing for it to have done was to make a new instrument. It does not explain why the free issue procedure was not applied, but does apologise for the oversight.
1.4The Committee accordingly reports these Regulations for failing to comply with Statutory Instrument Practice, acknowledged by the Department.
2S.I. 2019/306: Reported for an unjustified breach of the 21-day rule
Pesticides and Fertilisers (Miscellaneous Amendments) (EU Exit) Regulations 2019
2.1The Committee draws the special attention of both Houses to these Regulations on the ground that there has been an unjustified breach of the 21-day rule.
2.2These Regulations were made on 13 February and laid on 19 February. Regulation 1(3) states that Part 3 comes into force on 1 March. The Committee asked the Department for Environment, Food and Rural Affairs to explain the breach of the 21-day rule and why this was not explained in the Explanatory Memorandum.
2.3In a memorandum printed at Appendix 2, the Department states that a longer than usual time elapsed between making and laying, and apologises for the delay. The memorandum explains the exceptional pressures to which the Department is subject at present. The Committee notes that even if the instrument had been laid on the day of making there would still have been a breach of the 21-day rule, and accordingly reports these Regulations for an unjustified breach of the 21-day rule.
3Draft S.I.: Reported for requiring elucidation and for failure to comply with proper legislative practice
National Health Service (Cross-Border Healthcare and Miscellaneous Amendments etc.) (EU Exit) Regulations 2019
3.1The Committee draws the special attention of both Houses to these draft Regulations on the ground that they require elucidation in two respects and fail to comply with proper legislative practice in one respect.
3.2These draft Regulations amend retained EU law relating to cross-border healthcare to address deficiencies arising as a result of the United Kingdom leaving the European Union. The draft Regulations remove current cross-border healthcare rights under domestic legislation but enable residents in England and Wales to access cross-border healthcare up to 31 December 2020 (through Directive 2011/24/EU) with “listed” countries that reach agreement with the United Kingdom to continue such arrangements.
3.3The Committee asked the Department for Health and Social Care to explain whether “the day on which exit day falls” in regulation 15(6) is intended to have a different meaning to “exit day”. In a memorandum printed at Appendix 2, the Department confirms that a different meaning is intended. Section 20(1) of the European Union (Withdrawal) Act 2018 defines exit day as 29 March 2019 at 11pm and section 20(2) states that any reference to a time after exit day is a reference to a time after 11pm on 29 March 2019. Regulation 15(6) is intended to describe a period of time that will end at the end of a day and the reference to “the day after the day on which exit day falls” is intended to preclude any argument that the period of a year is to start at 11pm on 30 March 2019. The Committee accordingly reports regulation 15(6) for elucidation, provided in the Department’s memorandum.
3.4The Committee asked the Department to explain what discretion the Secretary of State has in deciding whether to include an EEA State on the list referred to in regulation 16(4) and in specifying the times the cross-border arrangements begin and cease to have effect with that State and also to give examples of when the Secretary of State may use the power in regulation 16(8) to remove an EEA State from the list. In its memorandum, the Department explains that the intention is that the Secretary of State will include on the list those EEA States which agree to continue cross-border arrangements with the United Kingdom after exit day and his discretion is limited to extending the current cross-border healthcare regime continued by the Regulations rather than creating any other regime. The Department further explains that an EEA State may be removed from the list if the United Kingdom negotiates a new arrangement with that State, for example, an arrangement which is to be given effect under the Healthcare (International Arrangements) Bill (which it is hoped will receive Royal Assent before 29 March 2019). Although there is power to sub-delegate under the European Union (Withdrawal) Act 2018, the extent of permitted sub-delegation is a question of fact and degree. In this instance, the Committee is of the view that the extent of sub-delegation is implicitly confined to reflecting changing external facts as described by the Department and is therefore permitted by the enabling power. The Committee accordingly reports regulation 16 for elucidation, provided in the Department’s memorandum.
3.5Regulation 18 provides that any rights, powers, liabilities, obligations, restrictions, remedies and procedures which continue to be available in domestic law by virtue of section 4 of the European Union (Withdrawal) Act 2018 cease to be available in domestic law so far as they are inconsistent with or otherwise capable of affecting the interpretation, application or operation of, provision made by the Regulations. The Committee asked the Department to explain the extent of this regulation and how users of the legislation are expected to find out what it achieves. In its memorandum, the Department explains that the intention is to prevent rights and obligations discontinued by the Regulations from being re-asserted through alternative routes, for example directly effective Treaty provisions such as the freedom to provide services. The Committee understands the policy intention but does not think that the “anything inconsistent” approach gives sufficient clarity to users of the legislation. The Committee believes that proper legislative practice would be to use a more detailed description of the rights being referred to, or even some kind of list, to provide a reasonable degree of clarity to the reader. The Committee notes that the Department is proposing to produce explanatory material relating to these Regulations (including regulation 18) but explanatory material, while helpful, is no substitute for maximising clarity in the legislative text. The Committee accordingly reports regulation 18 for failure to comply with proper legislative practice.
4Draft S.I.: Reported for requiring elucidation and for defective drafting
Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019
4.1The Committee draws the special attention of both Houses to these draft Regulations on the grounds that they require elucidation in one respect and are defectively drafted in three respects.
4.2This draft instrument corrects deficiencies in retained EU law arising as a result of the United Kingdom leaving the European Union. Regulation 3 amends Council Regulation (EC) No 428/2009 (the Dual-Use Regulation), which establishes an EU-wide regime to control the export of items that can be used for both civil and military purposes, and which will apply on a UK basis after exit day. The amendments include changing the definitions of ‘export’ and ‘exporter’ to remove inappropriate references to the customs territory of the Community. The Committee noticed that for physical goods, export was defined as meaning the removal of goods “from the United Kingdom to a destination outside of the United Kingdom and the Isle of Man”, whereas for electronic transmission of such things as software or technology, it was defined as meaning transmission “to a destination outside the United Kingdom”. The Committee asked the Department for International Trade to explain the reason for this distinction. In a memorandum printed at Appendix 4, the Department confirms that this reflects the policy intent and is consistent with the Export Control Order 2008: the arrangement whereby physical movement of goods from the United Kingdom to the Isle of Man is not considered to be export does not apply to electronic transmission of software or technology. The Committee accordingly reports regulation 3(3)(b)(iii) for requiring elucidation, provided in the Department’s memorandum.
4.3Regulation 3(5)(f) amends the final paragraph of Article 4 of the Dual-Use Regulation so that it reads: “This Regulation is without prejudice to the right of Member States to take national measures under Article 10 of Regulation (EU) 2015/479.” The Committee was puzzled as to how domestic UK legislation could, after exit day, prejudice the right of member States to take national measures under EU law and therefore asked the Department to explain the intended effect of that provision as amended. In its memorandum, the Department acknowledges that this is an error and undertakes to correct it. The Committee accordingly reports regulation 3(5)(f) for defective drafting, acknowledged by the Department.
4.4Regulation 3(22) amends Annex I of the Dual-use Regulation, which lists dual-use items for which export authorisation is required. Category 9 lists items relating to aerospace and propulsion, including assemblies and components that incorporate technologies for turbine engines “whose design or production origins are either non- EU Member States or Wassenaar Arrangement Participating States; or unknown to the manufacturer”. Regulation 3(22)(h)(ii) amends this provision by removing “either non- EU Member States or”. It appeared to the Committee that this amendment would have the unusual effect of requiring authorisation only where the design or production of these items originated from such places as Norway, Canada, Japan, Australia and EU member States (all Wassenaar Arrangement Participating States), or where their origins were unknown. The Committee therefore asked the Department to confirm whether the provision as amended should not read “whose design or production origins are either non-Wassenaar Arrangement Participating States; or unknown to the manufacturer”. In its memorandum, the Department acknowledges that this is an error and undertakes to correct it. The Committee accordingly reports regulations 3(22)(h) for defective drafting, acknowledged by the Department.
4.5The Committee also asked the Department to explain why the words “This Regulation shall be binding in its entirety and directly applicable in all Member States” had not been omitted by regulations 3 or 4 (although regulations 3(21) and 4(17) omit the Article that precedes this phrase). In its memorandum, the Department acknowledges that this is an error and undertakes to correct it. The Committee accordingly reports regulations 3(21) and 4(17) for defective drafting, acknowledged by the Department.
Published: 22 March 2019