Appendix 3: Correspondence - the "21
day" rule
Cosmetic Products (Safety) (Amendment) (No. 2)
Regulations 2006 (SI 2006/2231)
Letter from the Chairman to the Rt Hon. Geoff
Hoon MP, Minister of State for Europe
At this week's meeting of the Merits Committee, our
scrutiny of statutory instruments raised the issue of the interaction
between deadlines for compliance with European legislation on
the one hand, and domestic conventions on allowing sufficient
time for Parliamentary consideration of secondary legislation
on the other.
We had before us the Cosmetic Products (Safety) (Amendment)
(No. 2) Regulations 2006 (SI 2006/2231), which implement Commission
Directive 2006/65/EC. The Department of Trade and Industry (DTI)
had laid these on 17 August of this year, and brought them into
force on 1 September. The Explanatory Memorandum (EM) explained
that DTI had decided to breach the 21-day rule in order to ensure
that the Regulations came into force by a deadline of 1 September
2006 relating to the Directive.
The Committee agreed not to bring the Regulations
to the special attention of the House. However, we were not persuaded
that the circumstances described by DTI justified the breach of
the rule that the Government normally allows 21 days between laying
an SI and bringing it into force.
We are firmly of the view that the time allowed for
Parliament to consider secondary legislation before it takes effect
should not be curtailed solely to meet deadlines which the Government
has agreed for European legislation. I am raising our concern
with you since this is an issue that cuts across Government.
12 October 2006
Letter from the Rt Hon. Geoff Hoon MP, Minister
of State for Europe, to the Chairman
Thank you for your letter of 12 October, which raised
the issue of the interaction between deadlines for compliance
with European legislation on the one hand and domestic conventions
on allowing sufficient time for Parliamentary consideration of
secondary legislation on the other.
As you know, the 21-day rule is designed to ensure
that Parliament is given the opportunity to properly scrutinise,
before it comes into force, legislation made by the executive
under delegated powers. I can assure you that the Government remains
committed to observing this rule wherever possible
As the Statutory Instrument Practice makes clear,
there will inevitably be some instruments that must take effect
at shorter notice. Member States are under a legal obligation
to comply with Community law. Subject to that, the 21-day rule
should be "strictly observed wherever possible". On
the rare occasions when it is not possible to observe the 21-day
rule, the reasons should be explained in the Explanatory Memorandum.
This should include not only an explanation of why the instrument
has to come into effect on the day specified, but also why it
could not be made and laid sooner. The Memorandum supplied by
the Department of Trade and Industry explained in paragraph 3.1
why the rule was breached.
I have asked for officials across Whitehall to be
reminded of the commitment to the 21-day rule.
7 December 2006
Letter from the Chairman to the Rt Hon. Geoff
Hoon MP, Minister of State for Europe
Thank you for your reply of 7 December to my letter
of 12 October.
I was pleased to read your assurance that the Government
remains committed to observing the 21-day rule wherever possible.
However, your linked observation that Member States are under
a legal obligation to comply with Community law prompts me to
ask whether the concern which I explained in my earlier letter
has been fully taken on board.
The Committee recognises the force of the obligation
to comply with Community law. Yet we continue to see statutory
instruments (SIs) implementing Community obligations well after
the deadline for compliance. On 12 December, for example, the
Department for Trade and Industry laid before Parliament the Waste
Electrical and Electronic Equipment Regulations 2006 (SI 2006/3289),
which come into force on dates from January 2007 onwards, even
though the relevant Directive set a date of August 2005 for implementation.
I am sure that Government Departments do not wish
to see significant delays in the implementation of European legislation.
However, given that the Committee has seen a number of SIs where
such delays have run to months, if not years, we do not readily
accept the arguments against putting back the in-force date of
an implementing SI by at most a period of 21 days, so as to give
Parliament the opportunity to consider that SI before it comes
into force.
13 December 2006
Letter from the Rt Hon. Geoff Hoon MP, Minister
of State for Europe, to the Chairman
Thank you for your letter of 13 December 2006.
As I set out in my letter of 7 December 2006, the
Government remains committed to observing the 21-day rule wherever
possible. The Government takes very seriously its undertaking
that Parliament be given sufficient time to consider secondary
legislation before it comes into effect
Since my previous letter, I have ensured that updated
guidance has been circulated throughout Whitehall as a reminder
of this commitment.
The circumstances in which it should be necessary
to breach the 21-day rule because of requirements of Community
Law should be exceptionally rare, would always be regrettable
and should be explained to Parliament fully in the relevant Explanatory
Memorandum.
I note that the example you give of a delay in implementing
Community obligations comes under the responsibility of the Department
for Trade and Industry. I am not able to answer on the specifics
of this case.
10 January 2007
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