I am writing as Chairman of Sub-Committee A of the Secondary Legislation Scrutiny Committee which considered these draft Regulations at its most recent meeting.
As you will be aware, these lengthy Regulations cover an exceptionally wide range of subjects. And, unfortunately, we were not assisted in our understanding of them by an Explanatory Memorandum (EM) of even greater length. As a result, we found the instrument somewhat opaque.
The Sub-Committee has therefore asked me to raise the following questions:
To be of assistance to Parliament, an EM really must provide a concise, free-standing description of the effect of an instrument that is accessible to a reader with no prior understanding of the subject. Since the EM laid with the Regulations did not comply with this standard, we asked for further information about their ‘real world’ effects. We were disappointed that this request was not met with a positive response but that we were, instead, referred to a range of other documents. This was not helpful.
We would be grateful if you would respond to these questions, including the provision of a revised Explanatory Memorandum more suited to its purpose, by 10 am on Monday 4 February 2019.
29 January 2019
Thank you for your letter of 29 January 2019 about your Sub-Committee’s consideration of the Draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (‘the Regulations’).
You asked me to explain why the Home Office chose to include a range of subjects in a single instrument, and what consideration was given to the impact of doing so on effective parliamentary scrutiny.
The legislative changes being made by the instrument are in linked policy areas, and therefore our assessment was that combining them in a single instrument would assist scrutiny by the two Houses and also assist the eventual users of this legislation, which will include law enforcement partners and prosecutors around the UK. I of course accept that the Sub-Committee has taken a different view and hope that the fuller explanation below, together with the revised EM that we will be laying in response to the Sub-Committee’s request, will help to address the concerns raised in your letter and aid understanding and scrutiny of the instrument.
The Regulations cover three subject areas:
(a)security, law enforcement and judicial cooperation in criminal matters currently underpinned by EU legislation in Parts 2-4, 6-12, 14, and 16- 23;
(b)security-related EU regulatory systems for which the Home Office is responsible (drug precursors and psychoactive substances, explosive precursors, and firearms) in Parts 5, 13 and 15; and
(c)domestic legislation on the police and on investigatory powers made deficient by EU exit in Chapters 1 and 2 of Part 24.
In regard to (a), the Regulations address deficiencies in connection with EU measures made under Chapters 4 and 5 of Title V of the Treaty on the Functioning of the European Union. These measures are often referred to as having a Justice and Home Affairs or “JHA” legal base. In EU law, this is a coherent body of law that is often considered together, and is subject to different rules at the EU level (including the availability of the UK’s “opt in”).
Reflecting this shared underlying legal base, these measures all relate in some way to law enforcement and security in terms of their subject matter, and in many cases interact with each other at an operational level. For example, the operation of the European Arrest Warrant (EAW) is supported by the system of “alerts” circulated on the Second Generation Schengen Information System (SIS II), a Europe-wide IT system which enables the sharing of alerts on wanted/missing persons and objects for law enforcement purposes. As such, the Home Office considered that it would assist scrutiny to present these cognate and inter-related amendments together in a single instrument.
In regard to (b), the underlying EU law in these areas does not have a JHA legal base. However, the purpose of these regulatory systems–on drug precursors and psychoactive substances, explosive precursors and firearms–is similar to the underlying purpose of the JHA measures referred to above–to prevent, detect and prosecute criminal activities and to maintain security. For this reason, the Home Office considered it was appropriate to group these amendments with those relating to the JHA measures.
I should note that the Home Office is also responsible for one other regulatory system that is affected by the withdrawal of the UK from the EU–the use of animals in scientific procedures. Recognising that the purpose of that regulatory regime is not focused on law enforcement and security matters, the Home Office has brought forward a separate instrument to address deficiencies in that regime resulting from EU exit.
In regard to (c), the Regulations include a miscellaneous group of small, technical amendments to domestic legislation on the police and on investigatory powers. These amendments seek to ensure that legislation in this area remains operable on exit, and mainly address deficiencies arising from the assumption found in such legislation that the UK is an EU Member State. Given the nature and cognate subject matter of this group of amendments, the Home Office considered that it was appropriate to include them in these Regulations, rather than bringing forward a separate instrument. Where EU exit-related amendments are required to Home Office legislation unrelated to law enforcement and security - for example, deficient references in domestic legislation relating to immigration - these are being brought forward in a separate instrument.
You also asked me to explain why the Home Office did not provide a short description of the context and scale of each provision. The detailed information in the Explanatory Memorandum (including short descriptions of what any relevant EU law did before exit day, why it is being changed, and what it will do now) was supplied in good faith, in order to provide the Committee and other users of the EM with a thorough explanation of each provision in the instrument. We anticipated that the level of detail provided would be helpful to anyone with an interest in a specific Part of the instrument.
However, I accept that the Sub-Committee consider that we have not struck the right balance and that the EM is too long. As such, we will be laying a revised EM that is more succinct and will be providing a copy to the Sub- Committee shortly.
As regards the ‘real world’ effect of the instrument and specific provisions therein, we provided a detailed assessment of the practical effect of each Part in the Impact Assessment2 accompanying the Regulations, as well as a summary of the impact of the legislation in Section 12 of the Explanatory Memorandum. The information included in the Explanatory Memorandum and Impact Assessment attempted to isolate and describe the practical effect of the Regulations themselves and is free-standing in that sense.
As you note, further information was requested from my officials on the wider impact of EU arrangements in this area falling away in a ‘no deal’ scenario. These wider impacts would be the result of the Article 50 notification, rather than the provisions found in the Regulations. We will attempt to clarify this point in the revised EM and will also include a short description of those wider impacts by way of additional background.
I hope that this further information is helpful, and that the revised EM we are providing will meet the Committee’s needs.
4 February 2019
17 The Animals (Scientific Procedures) Act 1986 (EU Exit) Regulations 2019 ().