Thirty Ninth Report Contents

Proposed Negative Statutory Instruments under the European Union (Withdrawal) Act 2018

Instruments recommended for upgrade to the affirmative resolution procedure

Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2018

Date laid: 25 July 2018

Sifting period ends: 11 October 2018

1.Under existing legislation, there is a set number of designated days each year on which the Union flag must be flown on specified government buildings in Northern Ireland. On Europe Day, which falls on 9 May, there is currently a requirement to fly the Union flag and, where a building has two flagpoles, the European flag. This Proposed Negative instrument, laid by the Northern Ireland Office, seeks to remove the existing legal requirement to fly any flag on 9 May when the United Kingdom withdraws from the European Union. Flag flying is a controversial issue in Northern Ireland and given the political and legal sensitivity of this matter we believe the House would expect to debate it. We therefore recommend that this instrument should be subject to the affirmative resolution procedure.

Trade Barriers (Revocation) (EU Exit) Regulations 2018

Date laid: 27 July 2018

Sifting period ends: 11 October 2018

2.This Proposed Negative instrument revokes the EU Trade Barriers Regulation 2015/1843 (“the TBR”) which established a statutory procedure for the European Commission to examine concerns about trade barriers in non-EU (“third”) countries. Under the TBR, businesses, trade associations and Member States can present a complaint to the Commission with evidence of the trade barrier. Where a trade barrier is deemed to have a significant impact on the EU, the Commission is tasked with attempting to resolve the barrier. The Department for International Trade (DIT) explains that the TBR has been used infrequently; since 1996 only 24 TBR cases have been investigated by the Commission. In 2017, 70 new barriers were raised with the Commission and only one was raised as a result of the TBR. In the EU, the vast majority of trade barriers are raised via the Market Access Advisory Committee (a Commission-chaired committee attended by Member States and European-level trade associations).

3.DIT says that the TBR will no longer apply to UK stakeholders after the UK’s exit from the EU and will be superseded by new UK market access processes. The policy intention is to provide a clear, non-statutory route for UK businesses to report market access barriers they encounter. In the sifting statement in Part 2 of the Annex to the Explanatory Memorandum (EM), the Minister of State for Trade Policy proposes that the instrument should be subject to negative resolution because it does not meet any of the criteria for affirmative resolution set out in section 8 of the EU (Withdrawal) Act 2018.

4.We are not persuaded by the Minister’s statement. As we made clear in our report on sifting “proposed negative instruments” under the Withdrawal Act,1 we intend to apply the overarching test of whether the subject matter of an instrument and the scope of any policy change effected by it is of such significance that the House would expect to debate it. We think that the House would expect to debate this instrument, both because it bears upon a subject matter - market access barriers in international trade - which is of particular salience, and because the policy intention is to close off a statutory procedure for tackling such barriers and to provide only a non-statutory approach. In the EM, DIT sets out the features of a non-statutory procedure, but, while describing the limitations of the TBR, DIT does not explicitly address the possibility that, after the UK leaves the EU, domestic arrangements could include a statutory procedure alongside non-statutory arrangements. We recommend that this instrument should be subject to the affirmative resolution procedure.

Proposed Negative Statutory Instruments about which no recommendation to upgrade is made

Airport Charges (Amendment) (EU Exit) Regulations 2018

Airports (Groundhandling) (Amendment) (EU Exit) Regulations 2018

Civil Aviation Act 1982 (Amendment) (EU Exit) Regulations 2018

Computer Reservation Systems (Amendment) (EU Exit) Regulations 2018

Consumer Credit (Amendment) (EU Exit) Regulations 2018

Design Right (Semiconductor Topographies) (Amendment) (EU Exit) Regulations 2018

European Communities (Designation Orders) (Revocation) (EU Exit) Regulations 2018

European Parliamentary Elections Etc. (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) Regulations 2018

European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018

European Union (Definition of Treaties Orders) (Revocation) (EU Exit) Regulations 2018

Feed-in Tariffs and Contracts for Difference (Amendment) (EU Exit) Regulations 2018

Freedom of Information Act 2000 (Amendment) (EU Exit) Regulations 2018

Groceries Code Adjudicator Act 2013, Small Business, Enterprise and Employment Act 2015 and Enterprise Act 2016 (Amendment) (EU Exit) Regulations 2018

Postal and Parcel Services (Amendment etc.) (EU Exit) Regulations 2018

Vehicle Drivers (Certificates of Professional Competence) (Amendment) (EU Exit) Regulations 2018


1 37th Report, Session 2017–19 (HL Paper 174).




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