Instruments under the European Union Withdrawal Act 2018
Proposed Negative Instruments laid under the European Union (Withdrawal) Act 2018
Instruments about which no recommendation to upgrade is made
- Common Organisation of the Markets in Agricultural Products (Transitional Arrangements) (Amendment) Regulations 2021
Consideration of published draft instruments under Schedule 8 of the European Union (Withdrawal) Act 2018
Background
1.While the UK was a member of the EU, most Directives were transposed into UK law using section 2(2) of the European Communities Act 1972 (ECA). The European Union (Withdrawal) Act 2018 (“the 2018 Act”) repealed the ECA. It also requires that instruments that amend or revoke secondary legislation made under section 2(2) of the ECA, and made under a power conferred before the beginning of session 2017–19, must be (1) subject to an enhanced scrutiny procedure and (2), when laid formally, subject to the affirmative resolution procedure (with certain requirements about statements to be made in relation to the laid instrument).
2.The enhanced scrutiny procedure is set out in paragraph 14 of Schedule 8 to the 2018 Act. It is a two-stage procedure:
- First, the proposed instrument must be published as a draft for at least 28 days1 before it is laid before Parliament to allow for comment, whether by a committee of either House or any other organisation or individual. (“Stage 1 scrutiny”). We refer to these draft instruments as “published drafts”.
- Second, the instrument is laid formally before Parliament, subject to the usual scrutiny procedures (“Stage 2 scrutiny”) that apply to affirmative instruments. In addition, before the instrument is laid, the minister must make a “scrutiny statement” setting out, amongst other things, the Government’s response to any recommendations made by a parliamentary committee and to any other representations about the instrument. These statements will be published in the Explanatory Memorandum accompanying the statutory instrument.
3.Paragraph 15 of Schedule 8 to the 2018 Act also requires the minister, before an instrument is laid (for Stage 2 scrutiny), to make two other statements setting out “good reasons for the amendment or the revocation” and a statement explaining relevant law and the effect of the amendment or revocation on retained EU law. Helpfully, the Government have provided these statements alongside the two published draft instruments mentioned in this report.
Our approach to scrutiny of published drafts
Stage 1 scrutiny
4.Although it is open to any other parliamentary committee to make recommendations on published drafts, the House has appointed this Committee to consider all published drafts under the enhanced procedure.
5.The 2018 Act does not contain any criteria against which the published drafts should be assessed. It seems reasonable to us therefore to consider them against our normal terms of reference.2
6.In doing so, we will focus, in particular, on the following questions:
- whether the policy intention is clear: is the policy well described, are scope and definitions clear? Is there a rationale for the change to be made?
- whether the intended implementation is clear: is it obvious how it will work in practice or, for example, is essential operational guidance not available at the time the draft is published? Are there any gaps, for example, the policy’s application to Northern Ireland?
- whether the impact is clear: are the likely effects analysed and costs and benefits outlined to a proportionate degree?
7.Where we do not wish to raise any concerns, the published draft will be listed in our weekly report without comment (in the same way as some Proposed Negative instruments are treated). Where we wish to make a recommendation, an explanation will be published in our weekly report, and we will notify the relevant department.
Stage 2 scrutiny
8.When the instrument is laid formally before Parliament, we will undertake our usual scrutiny. Unlike Proposed Negative instruments, the 2018 Act allows a published draft to change between Stage 1 and Stage 2: our consideration at Stage 2 may include comment on the degree to which the final version has been adapted to address recommendations made by this or any other parliamentary committee and any other representations.
Published drafts on which the Committee makes recommendations
Motor Fuel (Composition and Content) and the Biofuel (Labelling) (Amendment) (No. 2) Regulations 2021
9.Ethanol is a biofuel that can be blended into petrol to reduce greenhouse gas emissions. The standard 95 octane grade, known as “premium” petrol in the UK, is currently blended with no more than 5% ethanol, a grade known as E5. These proposed Regulations will require its ethanol content to be increased to no more than 10% (E10) with effect from 1 September 2021. E10 petrol is suitable for the majority of petrol vehicles, but not some older vehicles and some petrol-powered equipment. This instrument therefore also ensures that “super” grade higher octane petrol remains E5 for those that need it.
10.The Department for Transport (DfT) says in the draft’s Explanatory Memorandum (EM) that these changes are necessary to meet future legally binding carbon budgets. Biofuel blending levels are generally driven by a separate government scheme known as the Renewable Transport Fuel Obligation (RTFO). The EM states that the proposed Regulations will only be effective if RTFO targets are increased as soon as possible after E10 is introduced; however, the next RTFO increases are planned for 1 January 2022. In the three months in between these Regulations taking effect and the RTFO targets being increased, according to paragraph 12.2 of the EM, the policy will cost the motorist around £20 million and decrease CO2 savings.
11.DfT does not offer any reason why these two sets of regulations cannot be more effectively synchronised and until they are, it appears that the proposed Regulations will operate against the policy intention of reducing emissions. We therefore recommend that, in the absence of convincing reasons to the contrary, the start of these Regulations should be reviewed with a view to aligning it with the complementary increase in the RTFO targets from 1 January 2022.
Published drafts on which the Committee makes no recommendations
- Railway (Licensing of Railway Undertakings) (Amendment) Regulations 2021
1 As usual, the 2018 Act stops the clock for recesses, prorogation etc. (para 14(9) of Sched 8 to the 2018 Act).
2 Except for the first which is to report whether an instrument is politically or legally interesting.