Eleventh Report of Session 2021-22 Contents

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Appendix 3

S.I. 2021/681

Official Controls (Temporary Measures) (Coronavirus (Amendment) (No. 2) Regulations 2021

1.The Committee has asked the Department for Environment, Food and Rural Affairs for a memorandum on the following point.

Explain why the signature block to this instrument does not record the consent of the Scottish Ministers and the Welsh Ministers as recited in the preamble (having regard to the paragraphs relating to S.I. 2021/486 in our Fourth Report of Session 2021–22).

2.Article 141 of the Official Controls Regulation (EUR 2017/625) (“OCR”) provides that:

“Where the appropriate authority has evidence of a serious disruption in a control system of any of the constituent territories of the British Islands and such disruption may constitute a widespread risk to human, animal or plant health, animal welfare or, as regards GMOs and plant protection products, also to the environment, or result in a widespread infringement of the rules referred to in Article 1(2), the appropriate authority must make regulations adopting one or more of the following measures, to be applied until such disruption is eliminated:…”.

3.The “appropriate authority” is defined in Article 3(2B) of the OCR as being the Secretary of State:

“(a) in relation to any functions exercisable in relation to a matter which is outside devolved competence; or

(b) in any other case, if consent is given—

(i) in the case of functions conferred, or any provision in regulations applying, in relation to Wales, by the Welsh Ministers;

(ii) in the case of functions conferred, or any provision in regulations applying, in relation to Scotland, by the Scottish Ministers”.

4.In seeking to exercise these powers to make the Official Controls (Temporary Measures) (Coronavirus) (Amendment) (No. 2) Regulations 2021, the Secretary of State sought the consent of the Welsh Ministers and the Scottish Ministers as set out in Article 3(2B). Having obtained that consent, the Secretary of State was the “appropriate authority” empowered to make regulations under Article 141.

5.The Department does not consider that there is a requirement for regulations made under Article 141, in circumstances where the devolved administrations have given their consent for the regulations to apply in relation to a matter within devolved competence, to be made jointly with ministers from the devolved administration. The power in these circumstances rests with the “appropriate authority”, which in this case is the Secretary of State.

6.The Department also considers there to be no requirement that consent must be established by signature. It is the Department’s view that the need to obtain consent in Article 3(2B) does not create a requirement for that consent to be evidenced by the inclusion of a signature in the signature block. Confirmation that consent has been obtained can be achieved, after properly obtaining the requisite consent, by recording that consent in the preamble in accordance with legislative practice. If the evidence for the consent of the devolved administrations is in question in a vires challenge, it can of course be provided.

7.Paragraphs 3.20.2 and 3.20.3 of Statutory Instrument Practice states the following on multiple signatures:

“3.20.2 Instruments are sometimes required to be made by more than one Minister or Department, or require the confirmation, approval or consent of some further Minister or Department.

3.20.3 Where an SI requires only the agreement of the National Assembly for Wales this approval does not need to be indicated by a signature. Approval should be recited in the preamble, in the same way as the approval of Parliament on affirmative resolution instruments.”

8.The Department considers that this indicates that consent from the devolved administrations does not need to be included in the signature block. The phrase “Minister or Department” in paragraph 3.20.2 clearly refers to a Minister of the Crown or a Department of Her Majesty’s Government. The Welsh Ministers and the Scottish Ministers are not a “Minister or Department” in this sense. Moreover, the Welsh Ministers are the statutory successor to the National Assembly for Wales in the context of paragraph 3.20.3.

9.The Department notes that in both the Official Controls, Plant Health, Seeds and Seed Potatoes (Amendment etc.) Regulations 2021 (S.I. 2021/426), and the Official Controls (Exemptions from Controls at Border Control Posts) (Amendment) Regulations 2021 (S.I. 2021/453), the Secretary of State exercised powers as the “appropriate authority” and cited consent from the devolved administrations in accordance with the preconditions in Article 3(2B) of the OCR, in the preambles to those instruments without including the signatures of Ministers from the devolved administrations.

10.The Department therefore considers that it was sufficient to recite the fact of the consent in the preamble and that no further steps were needed to give legal effect to the instrument. However, the Department would acknowledge that there may be a lack of consistency across Government on this issue. In respect of this, the Department has engaged with the SI Hub in the Government Legal Department, which will take steps with a view to introducing a more consistent approach, and clarifying Statutory Instrument Practice, on the point.

Department for Environment, Food and Rural Affairs

19 July 2021