Eighteenth Report Contents

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

Instruments recommended for upgrade to the affirmative procedure

Food and Farming (Amendment) (EU Exit) Regulations 2019

Date laid: 12 February 2019

Sifting period ends: 28 February 2019

1.This proposed negative instrument makes a range of amendments to retained EU legislation on wine and spirit drinks. It also proposes a number of corrections to previously laid EU exit instruments on genetically modified organisms and direct payments under the Common Agricultural Policy which are unrelated to the main substance of the instrument. While the Department for Environment, Food and Rural Affairs states that the amendments are minor and do not change policy, two of the proposals appear to be more significant.

2.First, the instrument proposes to transfer from the European Commission to the Secretary of State a new duty in relation to applications for the protection of geographic indications (GIs) of spirit drinks and wines. GIs are used to identify a product whose quality, reputation or other characteristic is linked to its geographical origin. The proposed changes would mean that, after EU exit, applications for GIs in the spirit drink and wine sectors would be submitted to and decided by the Secretary of State rather than the European Commission, as would objections to the Secretary of State’s decisions. This is a substantial new responsibility for the Secretary of State. Second, the instrument proposes amendments in relation to the protection of GIs of spirit drinks. Under the current arrangements, an annex to the relevant EU regulation lists all the spirit drinks GIs that are protected across the EU. 1 This instrument proposes to replace the current annex with a shorter list, so that only UK spirit drinks GIs would be automatically protected in UK law after EU exit. The Department told us that, in contrast, UK GIs in relation to spirit drinks will continue to be recognised by the EU as third-country GIs after exit, including in a ‘no deal’ scenario.

3.We consider that the proposed amendments go beyond what is required to maintain the operability of the law after EU exit: they confer a significant new duty on the Secretary of State and could have a considerable commercial and economic impact. The House may welcome the opportunity to debate these issues. In addition, we do not consider it good practice to include in this proposed negative instrument corrections to other instruments which are not related to the main substance of the draft Regulations. We therefore recommend an upgrade of the instrument to the affirmative procedure.

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

Bilateral Investment Agreements (Transitional Arrangements and Framework for Managing Financial Responsibility) (Revocation) (EU Exit) Regulations 2019

Date laid: 11 February 2019

Sifting period ends: 27 February 2019

4.This instrument proposes to revoke two EU Regulations on exit day.2 The Department for International Trade explains that without the revocation, the UK would remain bound inappropriately by the requirements of the two EU Regulations after exit, including having to seek authorisation from the European Commission before negotiating changes to existing bilateral investment agreements or concluding new agreements, and sharing financial responsibility for disputes between the EU and/or Member States and investors.

5.The Committee considers the negative procedure to be appropriate for this instrument. The Committee notes, however, that Part 2 of the Explanatory Memorandum includes an ‘urgency statement’ suggesting that the Minister will make use of the ‘urgent procedure’ to ensure that the instrument can come into force on exit day. Under the urgent procedure, Ministers can make statutory instruments (SIs) that come into immediate effect after having been made by the Minister. ‘Made affirmatives’ then require both Houses to approve them within 28 days to remain in force. Paragraph 5 to Schedule 7 of the European Union (Withdrawal) Act 2018 provides for the use of the urgent procedure in relation to secondary legislation laid under the Act. The Department told us that it would make use of the urgent procedure if the sifting Committees recommend an upgrade of the instrument to the affirmative procedure to “ensure that the SI will come into effect on Exit Day, as it is unlikely the necessary debates could be scheduled before then if the affirmative procedure were used”.

6.We agree that the negative procedure is appropriate for this instrument. The House may wish to be aware, however, that the Government have made clear that with limited time available now to debate secondary legislation before EU exit, they intend to use the urgent procedure, if they consider this necessary, to ensure that EU exit-related instruments can come into force on exit day.

1 Regulation (EC) No. 110/2008.

2 These are: Regulation (EU) No 1219/2012 on transitional arrangements for bilateral investment agreements between Member States and third countries, and Regulation (EU) 912/2014 on a framework for managing financial responsibility for investor-state dispute settlement (ISDS) claims in relation to bilateral investment agreements.

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