EUROPEAN UNION (ACCESSIONS) BILL
Memorandum by the Foreign and Commonwealth
23. This Memorandum identifies the sole provision
of the European Union (Accessions) Bill that provides for a power
to make delegated legislation. It explains the purpose of the
power, the reason why the matter is left to delegated legislation,
and the nature and justification for the procedure selected for
the exercise of the power.
24. The Bill relates to the Treaty concerning
the accession of the Czech Republic, Estonia, Cyprus, Latvia,
Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the
European Union, signed in Athens on 16 April 2003 ("the Accession
25. The Accession Treaty provides for the accession
of the ten new Member States (as above) to the European Union
on 1 May 2004. The Treaty falls into three parts: (a) a Treaty
between the fifteen existing and the ten new Member States, (b)
an Act concerning the conditions of accession and the adjustments
to the Treaties on which the European Union is founded ("the
Act of Accession"), and (c) the Final Act of the parties
to the Treaty.
26. The Bill does two things:
(a) it enables the Accession Treaty to be implemented
in UK law, and approves the provisions of the Accession Treaty
insofar as they relate to the powers of the European Parliament;
(b) it provides a power to grant nationals of
the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland,
Slovenia and Slovakia ("the eight relevant states")
the same rights to enter and reside in the UK from 1 May 2004
to take up employment as are enjoyed by nationals of the states
in the European Economic Area (EEA),
and will be enjoyed automatically on accession by nationals of
Cyprus and Malta.
27. The Bill comprises three clauses.
28. The Bill extends to England, Wales, Scotland
and Northern Ireland.
29. The subordinate legislation provided for
in the Bill is considered by the Department to fall within the
recommendations of the Select Committee on the Scrutiny of Delegated
Powers in its report of 2 March 1993.
30. The Department stands ready to provide the
Committee with any further supporting details on the delegated
power that the Committee thinks fit; and to give oral evidence
and support if the Committee considers that to be more helpful.
Proposals for Subordinate Legislation - Freedom
of Movement for workers
31. The Bill provides a power to make regulations
granting nationals of the eight relevant states the same rights
to enter and reside in the UK to take up employment as are enjoyed
by nationals of the existing Member States - from the date of
accession. Under the Accession Treaty, only nationals of Cyprus
and Malta gain automatic rights to free movement as workers across
the European Union from the date of accession. Nationals of the
eight relevant states are subject to transitional measures, which
may last, at the most, until 30 April 2011.
32. Under the Accession Treaty, the existing
Member States will, between 1 May 2004 and 30 April 2006, regulate
access to their labour markets of nationals of the eight relevant
states through "national measures" or "bilateral
agreements". The Treaty does not define either term, in effect
allowing the existing Member States to adopt a permissive or a
restrictive policy for the first two years after accession.
33. From 1 May 2006, the existing Member States
have a choice:
- either to apply the provisions of Community law
on free movement of workers;
- or to continue to
apply "national measures" or "bilateral agreements"
- Member States taking this option may apply such measures or
agreements for a further three years (i.e. until 30 April 2009).
34. From 1 May 2006, any Member State that has
chosen to apply Community law may, during the following five years
(i.e. until 30 April 2011), request the Commission to suspend
in whole or in part the application of Community law if the Member
State "undergoes or foresees disturbances on its labour market
which could seriously threaten the standard of living or level
of employment in a given region or occupation". In exceptional
cases, the Member State may unilaterally suspend the relevant
provisions of Community law, followed by a reasoned notification
to the Commission.
35. Subsequent to 30 April 2009, any existing
Member State that has, in the interim, continued to apply "national
measures" or "bilateral agreements" may continue
to do so for a further two years (i.e. until 30 April 2011) "in
case of serious disturbances of its labour market".
36. The Government announced in December 2002
that it would allow nationals of the eight relevant states to
work freely in the UK from the date of accession. Clause 2 of
the Bill grants a power to make regulations implementing this
decision. Regulations made under section 2 of the Act would, in
effect, constitute the "national measures" anticipated
in the Accession Treaty (see above).
37. Clause 2 enables the Secretary of State to
make regulations allowing nationals of the eight relevant states
to enter and reside in the UK to take up employment on the same
terms as are enjoyed by nationals of the existing Member States
of the European Economic Area. Community law rights of EEA nationals
to enter and reside in the UK are currently implemented by the
Immigration (European Economic Area) Regulations 2000 (SI 2000/2326)
(as amended) ("the EEA Regulations").
38. In particular, subsection (1) of clause 2
allows for regulations to be made to provide that the entitlement
of nationals of the EEA to enter and reside in the UK in order
to work applies to nationals of the eight relevant states. Regulations
may also provide for any matter ancillary to that entitlement,
such as the rights of family members to accompany the worker to
39. This matter is thought to be appropriate
for delegated legislation because the Community law rights of
EEA nationals to enter or reside in the UK as a worker are themselves
implemented by way of delegated legislation. The EEA Regulations
will simply be applied to nationals of the eight relevant states
as they apply to nationals of the EEA through amendment of the
appropriate definitions of the Regulations so as to include the
eight relevant states.
40. In announcing its policy on free movement,
the Government has emphasised the importance of providing safeguards
in case the application of the policy should lead to unexpected
and deleterious consequences for the labour market. The use of
regulations will enable Ministers to apply such safeguards in
a flexible and timely manner. Under the normal rules governing
subordinate legislation and subject to parliamentary procedure
(see below), Ministers would be able, if circumstances required
it, to repeal or suspend the application of regulations made in
respect of all eight relevant states. Equally, if the labour market
encountered disturbances from migration by nationals of some but
not all of the eight relevant states, Ministers would be able
to issue amending regulations suspending freedom of movement of
workers from those states alone. Specifically, subsection (2)
of clause 2 enables the regulations to extend the rights of EEA
nationals to nationals of the eight relevant states in a modified
or partial fashion; while subsection (3) allows for transitional
or consequential provisions and enables the regulations to make
different provisions for different cases.
41. Subsection (4) provides that regulations
will apply only in respect of states that have ratified the Accession
Treaty. This provision is necessary because the Government's decision
to allow nationals of the eight relevant states access to the
UK labour market is a direct consequence of their anticipated
accession to the European Union. If any of the eight relevant
states do not, in fact, accede on 1 May 2004, this provision will
ensure that current immigration controls are maintained on nationals
from the states concerned.
42. Regulations made under this clause will be
subject to the negative resolution procedure. The negative resolution
procedure is considered appropriate for two reasons:
- first, the principle of free movement of workers
in the eight relevant states will have been fully considered by
Parliament during the passage of the Bill; and
- secondly, the EEA Regulations were also adopted
by the negative resolution procedure, in exercise of powers conferred
by section 2(2) of the European Communities Act 1972.
4 The European Economic Area currently comprises the
fifteen Member States of the EU, together with Norway, Iceland
and Liechtenstein. Back