Instruments of interest
Draft Common Fisheries Policy and Aquaculture (Amendment etc.) (EU Exit) Regulations 2019
17.The Common Fisheries Policy (CFP) establishes a common approach to the sustainable management of fisheries across the EU and its waters. The Department for the Environment, Food and Rural Affairs (Defra) says that the purpose of the instrument is to transfer legislative functions that are currently exercised by the European Commission to the appropriate fisheries administrations in the UK after EU exit. These functions are powers to introduce or amend detailed technical rules relating to 15 specific CFP regulations and one regulation on aquaculture, and include, for example, the power to amend a list of vessels that are engaged in illegal, unreported and unregulated fishing.
18.The instrument also proposes amendments to enable the UK to apply to become a contracting party to three Regional Fisheries Management Organisations (RFMOs). RFMOs are international agreements on common management of shared resources in specific seas or maritime areas. Defra explains that this instrument relates to three RFMOs where the EU is a contracting party and in which the UK currently participates through its membership of the EU.6 At present, CFP regulations that directly apply in UK domestic law ensure that the UK complies with the requirements of the RFMOs. According to Defra, this instrument seeks to continue the effect of the current arrangements, so that after EU exit, the UK will be able to demonstrate compliance with the RFMOs, enabling it to apply to be a contracting party in its own right. The Department states in the Explanatory Memorandum (EM) that this approach should “ensure that there is as little gap in membership as possible”. We asked Defra for further information on the application process and the potential impact of a gap in membership on the UK fisheries industry. The Department told us that there could be gap in membership of the North-East Atlantic Fisheries Commission (NEAFC) for a “short period” and that while the “UK fleet could theoretically lose access to the fishing opportunities”, NEAFC members “would also lose access to fishing opportunities” in UK waters. We are publishing the additional information provided by Defra at Appendix 1 and note that it would have been helpful for the Department to give a fuller picture of the application process and possible delays in the EM. We also received a submission from Green Alliance on behalf of Greener UK and Wildlife and Countryside Link which raises concerns about the instrument, including in relation to a potential weakening of oversight and controls. We are publishing this submission, and Defra’s response addressing these concerns, on our website.7
Draft Common Organisation of the Markets in Agricultural Products Framework (Miscellaneous Amendments, etc.) (EU Exit) Regulations 2019
19.This instrument, laid by the Department for Environment, Food and Rural Affairs (Defra), is linked to and shares an Explanatory Memorandum with three other instruments.8 Together these four instruments propose amendments to legislation on the Common Market Organisation (CMO), so that market support measures can continue to operate effectively in the UK after EU exit. Defra explains that the CMO provides a framework for the EU’s market support schemes in the agricultural sector, and that it was set up to stabilise markets, ensure a fair standard of living for agricultural producers, and increase agricultural productivity. The CMO enables the EU to manage market volatility, encourage collaboration between and competitiveness of agricultural producers and facilitate trade. One specific aspect of this instrument is that it deals with promotional measures for agricultural products that are managed by the European Commission (“the Commission”) and highlight the quality, nutritional value and safety of certain agricultural products. Such measures include, for example, three-year programmes to promote fruit and vegetables, meat or dairy products. This instrument makes amendments to allow existing “simple” programmes that only involve the UK to continue after exit. “Multi-programmes”, that involve more than one Member State, will no longer operate in the UK if there is a ‘no deal’ exit. Further information provided by the Department suggests that the UK is currently a key recipient of financial support provided by the Commission for certain multi-programmes. For example, the UK has been allocated €4.7 million of a €10 million budget of a programme to promote lamb, and €7.3 million of a €10.4 million budget for promoting organic products. Defra has confirmed that there is no funding from the Government for the continuation of these multi-programmes after exit until their completion in 2020, and that stakeholders have been informed. We are publishing the additional information at Appendix 2.
Draft Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019
20.HM Treasury (HMT) first laid this instrument as a proposed negative. As HMT acknowledges in section 3 of the Explanatory Memorandum (EM), both the European Statutory Instruments Committee of the House of Commons9 and this Sub-Committee10 recommended that the instrument should be “upgraded” to the affirmative procedure, a recommendation which HMT has accepted. In making our recommendation we noted that the legislation proposed to be amended by the instrument includes: four Acts of Parliament; seven “pre-EU Exit” statutory instruments; 12 “EU Exit” statutory instruments that have been considered by the House during the last six months; and several items of retained EU legislation. While the detailed explanations of the changes given in section 7 of the EM are replete with references to “minor and technical amendments”, we consider that the number and significance of the Acts and instruments being amended, and of the policy area (financial services regulation) concerned, justify the choice of the affirmative procedure to provide the House with the opportunity to debate the instrument. To repeat what we have previously expressed in commenting on another instrument,11 we hope that HMT has not under-estimated the challenge which is posed to financial services firms in taking on board so many amendments to the core legislation for the sector. The House may wish to seek assurances that the Government are assisting financial services firms in understanding the volume of legislation.
International Joint Investigation Teams (International Agreements) (EU Exit) Order 2019 (SI 2019/274)
21.This instrument is intended to fix a gap that will arise in the case of a ‘no-deal’ Brexit, so that the UK will be able to continue to operate Joint Investigation Teams (JITs) into serous organised crime with EU Member States. By amending the legal base to be used, the UK will be able to continue to participate in such investigations, particularly with Italy, Greece, Luxembourg and Slovakia, which four countries have not fully ratified one of the necessary Conventions. The Explanatory Memorandum states that without this provision four ongoing investigations would lapse and no more could be initiated with those countries. This is exactly the sort of contextual information that the Committee was seeking when it criticised the Home Office’s inadequate explanation of the draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019.12 Part 17 of that instrument revoked certain provisions relating to JITs without explaining either the consequences or the Home Office’s wider intentions. The House may wish to note the connection between the two items of legislation and ask the Home Office why it declined to present a coherent picture of its policy.
6 The three Regional Fisheries Management Organisations are the Northwest Atlantic Fisheries Organisation, the North-East Atlantic Fisheries Commission and the International Commission for the Conservation of Atlantic Tunas.
7 Secondary Legislation Scrutiny Committee (Sub-Committee A) Publications page: https://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee-sub-committee-a/publications/
8 The three other instruments are the draft Market Measures (Miscellaneous Provisions) (Amendment) (EU Exit) Regulations 2019, the draft Market Measures Payment Schemes (Amendment) (EU Exit) Regulations 2019 and the draft Market Measures (Marketing Standards) (Amendment) (EU Exit) Regulations 2019.
9 European Statutory Instruments Committee, Eighteenth Report of Session 2017-19 (HC 1933).
10 17th Report, Session 2017-19 (HL Paper 292).
11 The draft Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 in our 16th Report, Session 2017-19 (HL Paper 285).
12 17th Report, Session 2017-19 (HL Paper 292).