1.In its letter to the Department of 24th February 2021, the Committee requested a memorandum on the following point:
“The SI numbered 2019/830 was never officially made further to its passage through Parliament.”
Explain what is meant by the statement that the statutory instrument was not “officially” made. If it means that the instrument was made, explain why it is appropriate to treat the making of the instrument as not being “official” and therefore capable of being ignored. If, on the other hand, the instrument was not made (in that it was not signed by the Minister), explain:
2.The Department’s response to the Committee’s point is as follows.
3.As previously disclosed to the Committee, S.I. 2019/830 was a nullity in legal terms. The Department for International Trade has made a records check of the instrument with the National Archive. This has shown that in 2019 the then Minister was asked to sign a copy of the withdrawn draft version of those Regulations rather than the superseding draft version subsequently approved by Parliament. The resulting instrument, which was numbered as S.I. 2019/830 was therefore a nullity.
4.This error was notified by the Department to the National Archive, to correct the public record, but the SI had already been published. The National Archive withdrew the instrument on our instruction, but legal publishers did not pick up on the correction issued by the National Archive and the relevant change to the public record. Those publishers have been contacted directly by the Department to draw their attention to this issue so that instrument can be removed from their databases in accordance and match the public record. It is regrettable that the Minister was asked to sign that instrument at that time. Although the Department corrected the error as quickly as possible it did not anticipate or notice that the instrument continued to appear on subscription databases after that date, which might have led some users of those services to be confused as to the state of the law.
5.The Minister was not asked to sign the approved version of that instrument because it became apparent, around the same time, that further developments in the international law framework of the UK’s departure from the European Union, particularly in relation to Northern Ireland, would almost certainly require the instrument to be amended. The relevant amendments have been made in the draft instrument that is before the Committee.
2 March 2021