Lords Secondary Legislation Scrutiny Committee recommend upgrading of two Brexit Act regulations

The Committee recommend that two of the 17 Proposed Negatives should be upgraded from the negative to the affirmative procedure.  If agreed, this would mean they must be debated and approved by both Houses of Parliament before they can become law. The instruments recommended for upgrade are:

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

This Proposed Negative, laid by the Northern Ireland Office, seeks to remove the existing legal requirement to fly the Union flag, and where a building has two flagpoles, the European flag, on Europe Day, 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, the Committee recommends that this instrument should be subject to the affirmative resolution procedure.

• Trade Barriers (Revocation) (EU Exit) Regulations 2018

This Proposed Negative 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 countries. Under the TBR, businesses, trade associations and Member States can present a complaint to the Commission with evidence of the trade barrier for arbitration and resolution. The Department for International Trade (DIT) proposes that because the TBR has been used infrequently (only 24 TBR cases since 1996) the mechanism can be downgraded in the changeover. The Committee says:

“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 substitute only a non-statutory approach.”

Commenting Lord Trefgarne, Chairman of the Committee said:

“Today's report is our first in our new role of scrutinising Proposed Negative Statutory Instruments under the EU Withdrawal Act. We, along with our colleagues in the European Statutory Instruments Committee in the House of Commons, will ensure such instruments are properly scrutinised and, where we think that they should be subject to the affirmative procedure, we shall say so.

“Today we are recommending that two Proposed Negative instruments that the Government proposed go through without debate, relating to the flying of flags in Northern Ireland and Trade Barriers, should instead be subject to debate and explicit approval by Members of both Houses.

“On the first issue, this is clearly a matter of political and legal sensitivity in Northern Ireland and we believe that the House would expect to debate it. On the second, the reduction in firms' ability to challenge trade barriers from a statutory to a non-statutory mechanism is also something that deserves closer attention than the Government have initially proposed.”

Background on the Committee's new role

The Committee's role in scrutinising secondary legislation under the European Union (Withdrawal) Act 2018 was agreed during debates on the Bill when concern was expressed in both Houses on the degree of choice given to Ministers about how the necessary legislation was to be made and which procedure it would follow: the affirmative (which requires debate and approval) or negative (which does not).

To address these concerns it was agreed that a Committee in each House should scrutinise all negative instruments proposed under the Withdrawal Act where the Minister has a choice between the negative and the affirmative procedure. In the Lords, the long-established Secondary Legislation Scrutiny Committee was given the task, and today's report reflects its consideration of the first Proposed Negatives introduced under the Withdrawal Act.