APPENDIX 1: EUROPEAN UNION (CROATIAN ACCESSION
AND IRISH PROTOCOL) BILL: GOVERNMENT RESPONSE
I am writing in response to the Committee's 10th
Report of Session 2012-13 in which the Committee recommends
that all regulations made pursuant to Clause 4 (freedom of movement)
of the European Union (Croatian Accession and Irish Protocol)
Bill be subject to affirmative procedure.
As drafted, the Bill would require that the initial
regulations made pursuant to clause 4 be subject to the affirmative
resolution procedure. This would provide Parliament with the opportunity
to give or deny approval but not to amend the regulations. Any
subsequent regulations would be subject to either the negative
or the affirmative resolution procedure.
I consider these arrangements to be proportionate.
The initial regulations made pursuant to clause 4 will set out
in detail the scheme of restrictions which are to be applied to
Croatian nationals. They will, for example, set out the circumstances
in which a Croatian national may be authorised to take employment
and the penalties which may be applied for any breach of the restrictions,
It is clearly appropriate that there should be a presumption that
Regulations setting out a broad scheme of controls and penalties
should require the positive approval of the House.
Any subsequent Regulations pursuant to clause 4 are,
by contrast, likely to have only a limited purpose, The circumstances
in which we would expect the regulations to be amended, and taking
the equivalent regulations applied to Bulgarian and Romanian nationals
as a precedent, are twofold, Firstly, the regulations may be amended
to extend the period during which they apply, The initial regulations
will provide for their application for an initial period of five
years, Under the terms of the Accession Treaty, transitional measures
may be extended for a further two years if there is serious labour
market disturbance, or the threat of such, The Government would
expect to review the labour market situation at that point (and,
as with the Bulgarian and Romanian restrictions, may well commission
the Migration Advisory Committee to provide advice on the case
for extending the restrictions). It is, of course, possible that
amending regulations might be made with the purpose of curtailing
the period during which the initial regulations are in force,
but this is unlikely. The measures applied to the countries which
acceded in both 2004 and 2007 have been applied for as long as
it is legally possible to do so.
Secondly. it may become necessary to make technical
adjustments to the regulations to, for example, adjust the circumstances
in which work authorisation may be given to reflect particular
labour market circumstances or to bring the regime applied to
Croatian nationals into line with the regime applied to third
country nationals where subsequent changes to the Immigration
Rules applied to the latter would otherwise provide the latter
with more generous treatment. In the case of the regulations applied
to Bulgarian and Romanian nationals, there have been subsequent
amendments to the original regulations. But these have been to
address technical issues such as bringing the arrangements for
students undertaking employment during vacation, or vocational
employment linked to their studies, into line with the treatment
extended to third country nationals, and to makes changes to the
arrangements for family members of Bulgarian and Romanian workers
(which the Accession Treaty required be lifted once the restrictions
had been in force after two years).
These were matters concerned with responding, as
they arose, to legal issues as to the proper administration of
the restrictions, rather than matters pertaining to their general
shape and force. It does not seem essential that amendment of
the regulations to deal with these types of issue should require
the affirmative resolution procedure. The negative procedure would
nevertheless allow for the possibility that a Member might pray
against any subsequent regulations if their effect was judged
to amount to significant policy change.
The Rt Hon David Lidington MP
Minister for Europe
December 2012
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