Number of Corrections to Statutory Instruments in 2014 - Secondary Legislation Scrutiny Committee Contents


APPENDIX 2: CORRESPONDENCE ON THE CONTROL OF EXPLOSIVES PRECURSORS ETC. REGULATIONS (NORTHERN IRELAND) 2014


Letter from Dr Andrew Murrison MP, Parliamentary Under-Secretary of State for Northern Ireland to Baroness D'Souza, the Lord Speaker

In compliance with the proviso to section 4(1) of the Statutory Instruments Act 1946 I invite your attention to the fact that Sl 2014 (number pending) Control of Explosives Precursors etc. Regulations (Northern Ireland) 2014, which was made under articles 3(1)(c), (2) and (4), 17, 40(2), (3) and (4), 54(1), (2)(b) and (3), and 55(2) of, and paragraphs 1(1) and (4), 2, 3, 5, 14(1), 15 and 22 of Schedule 3 to, the Health and Safety at Work (Northern Ireland) Order 1978, which are exercisable by the Secretary of State in relation to explosives, with modifications, by paragraph 4 of Schedule 12 to the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010, on 28 August 2014 and came into force on 2 September 2014, has yet to be laid before Parliament.

Any Government regulation which imposes a burden on business must first be approved by the Reducing Regulation Committee. Due to unforeseen delays within the Northern Ireland Office, the Impact Assessment was not submitted to that Committee for clearance as early as it should have, which resulted in delays.

It was intended that the instrument would be made and laid once clearance was received. The instrument was made in error on 28 August 2014, without clearance from the Reducing Regulation Committee having been received. Clearance has now been received from the Reducing Regulation Committee. The instrument will be authenticated and laid before Parliament as soon as possible.

It was nonetheless necessary for the instrument to come into force on operation on 2 September 2014, before it is laid before Parliament, because this instrument implements Regulation (EU) 98/2013 on the marketing and use of explosives precursors (the "Precursors Regulation"), which comes into force on that date. Although the Precursors Regulation is directly applicable in member States, the UK is required to take some action to implement it.

First, the Precursors Regulation creates a prohibition on the supply of certain substances to, and possession use and import of those substances by, members of the public, but then permits member States to establish a licensing system to permit such use. Even if the UK does not create a licensing system, it is still required under Article 11 of the Precursors Regulation to impose penalties for breach of the prohibition on possession, use, etc of the substances and for failure by suppliers to report suspicious transactions and significant disappearances of all substances covered by the Precursors Regulation. If the UK fails to legislate to impose penalties, the UK will be in breach of EU law.

Second, if the UK does not legislate, the existing licensing system that is in place in Northern Ireland in respect of one of the substances covered by the Precursors Regulation (sodium chlorate) would not comply with the requirements of the Precursors Regulation about licensing systems (e.g. length of licence, way in which licence is granted). So, if the UK fails to legislate to streamline the licensing system, the UK will be in breach of EU law.

Separately from the significant risks of breaching EU law, failure to bring the regulations into force on 2 September would also have a practical effect on business. The Precursors Regulation creates a prohibition on the supply of certain substances to, or the possession, import or use of those substances by, members of the general public. Member States are then permitted to (but do not have to) allow possession, use, etc by way of a licensing system. On 2 September, this prohibition will come into force. If Northern Ireland does not have a licensing system in place by 2 September, the prohibition will take effect so that nobody will be allowed to supply these substances to members of the general public. The Northern Ireland Office would need to inform suppliers that they must immediately cease all retail supply of these substances. No doubt there would be strong objections to this, and the possibility of legal action cannot be excluded. (Note that, as of 2 September, suppliers will be required to report suspicious transactions. Late implementation would not have a direct impact on this.)

I regret the necessity to bring this instrument into operation before copies have been laid before Parliament. This is particularly unfortunate due to the breach of the 21 day rule that it necessarily entails. I am ready to provide further information to the House should it be required.

3 September 2014

Letter from Lord Goodlad to Dr Andrew Murrison MP

Your letter of 3 September to the Lord Speaker about problems in relation to the laying of these Regulations was copied to this Committee, as is standard practice, since it is our function to scrutinise all secondary legislation on behalf of the House and advise its Members of any issues arising.

It is clear from your letter that, given the imminence of the implementation date for the EU Regulation, you could not do other than breach the 21-day rule. We asked your department how this circumstance had arisen. The explanation we received indicated that the relevant officials were insufficiently familiar with the legislative process. Since the general standard of secondary legislation we receive from the Northern Ireland Office is very good, we accept that this is likely to be an isolated incident, particularly as I understand that you have asked the Permanent Secretary to review the process to ensure that it does not happen again.

Unfortunately, there was another serious problem with this instrument. The Explanatory Memorandum laid with it on 8 September stated that a written consultation was launched on 9 December 2013 and closed on 9 January 2014. The Committee has a particular concern about the general standard of consultation and we regard a short consultation over the Christmas period as poor practice, particularly when the main target audience is retailers, for whom it is the busiest time of the year. We therefore asked why that period had been chosen. In response, your officials referred instead to a seven-week consultation that had commenced in November. When we queried this we were told that our question had "prompted them to look again at this" and they realised that the consultation process had been "wrongly described in the EM".

We regard this lapse from the standard expected for material presented to Parliament as very serious indeed and would ask for your assurance that steps are being taken in your department to improve checking procedures so that such a lapse in accuracy is not repeated. The Committee would also be grateful for your confirmation that the instrument and the material in the revised Explanatory Memorandum laid on 25 September is now complete and accurate, before the Committee makes its report on it to the House.

14 October 2014

Letter from Dr Andrew Murrison MP to Lord Goodlad

I share your concerns regarding the standard expected for material presented to Parliament. I have already spoken with the Permanent Secretary at the Northern Ireland Office to ensure there is an improvement in the quality of work towards future legislative process.

NIO officials plan to liaise shortly with colleagues in our Parliamentary Section and the Home Office Legal Advisors Branch to arrange training and awareness of the legislative process, including the importance of providing full and accurate information to Parliament. Senior Officials will also ensure that there is sufficient support provided to the policy lead on a legislative project.

NIO officials have checked the Instrument and Explanatory Memorandum, and I am satisfied that they are now complete and accurate.

17 October 2014


 
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