Select Committee on Delegated Powers and Regulatory Reform Twenty-First Report

Annex 3


Memorandum by the Foreign and Commonwealth Office


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 Treaty").

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; and

(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)[4], 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 the UK.

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.

June 2003

  1. 4   The European Economic Area currently comprises the fifteen Member States of the EU, together with Norway, Iceland and Liechtenstein. Back

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