EU exit regulations and Northern Ireland

A high profile consequence of the continuing failure to establish an Executive and fully functioning Assembly was the legislative passage this week of the Northern Ireland (Executive Formation and Exercise of Functions) Bill 2018.  A less high profile but noteworthy consequence was the publication of the first Statutory Instrument, using powers conferred by the European Union (Withdrawal) Act 2018, (‘EUW Act’) which deals exclusively with consequences arising from the withdrawal of Northern Ireland as part of the United Kingdom from the European Union.

The European Union (Withdrawal) Act 2018

The EUW Act, amongst other things, contains a ‘correcting power’ that enables corrections to be made to law to make it work appropriately after the UK has left the EU. The EUW Act also contains an ‘implementing power’, which is a limited power to enable the withdrawal agreement to be implemented as appropriate. This is a separate process from that by which the Government will bring forward a motion on the final agreement to be voted on by both Houses of Parliament before it is concluded. The correcting power and the implementing power have been conferred on:

1. UK Government Ministers;
2. devolved authorities; or
3. a UK Government Minister acting jointly with one or more devolved authorities.

The devolved authorities are only able to exercise the powers within their areas of devolved competence, as defined in the EUW Act. UK Government Ministers, however, may act in all areas, including those within devolved competence. The UK Government has stated though that it will not normally do so without the agreement of the relevant devolved authority.

With exit day less than six months away, and in the continued absence of a Northern Ireland Executive, the UK Government has stated that ‘in the interest of legal certainty in Northern Ireland’, the UK Government Ministers will, in close consultation with the Northern Ireland departments, take through at Westminster the necessary secondary legislation for Northern Ireland.

In this context, The Planning (Environmental Assessments and Miscellaneous Amendments) (EU Exit) (Northern Ireland) Regulations 2018 were published on 24 October 2018. These regulations are the first to deal exclusively with consequences arising from the withdrawal of Northern Ireland as part of the United Kingdom from the European Union. Using the ‘correcting power’ the regulations make changes to legislation that implements the Environmental Impact Assessment, Management of Waste from Extractive Industries and Hazardous Substances regimes in Northern Ireland. The regulations have been prepared by the Department for Infrastructure (Northern Ireland) but the  Ministry of Housing, Communities & Local Government will take the legislation through Westminster.

Devolved authorities’ scrutiny of UK Ministers use of powers in devolved areas

In Wales and Scotland, the devolved authorities have put in place procedures to facilitate scrutiny of UK Ministers when they intend to use the correcting power or implementing power in areas of devolved competence.

The Scottish Government and the Scottish Parliament have agreed a protocol under the terms of which, Scottish Ministers will notify the Scottish Parliament of any proposal to consent to the UK Government using its powers in devolved areas. Lead committees are then invited to scrutinise the proposal to consent, and report to the Scottish Parliament with a recommendation as to whether consent should be given to consideration of the instrument in question taking place at Westminster. Addressing the issue of consent, Michael Russell MSP, the Cabinet Secretary for Government Business and Constitutional Relations explained that:

Where the policy outcome being sought is consistent across administrations, then it could be appropriate and in Scotland’s interests to agree a UK-wide approach to statutory instruments (for example, to avoid duplication of effort, or where only technical or minor amendments are required). Where a different way of dealing with EU withdrawal, or a different policy outcome, is required in Scotland, we will pursue our own statutory instruments in the Scottish Parliament.

In the National Assembly for Wales, Standing Orders now stipulate a procedure requiring ‘Notification in Relation to Statutory Instruments made by UK Ministers in devolved areas under the European Union (Withdrawal) Act 2018 not laid before the Assembly’. Amongst other things, this standing order now requires Welsh Ministers to explain in a written statement why they have consented to UK Ministers making the relevant statutory instruments.

One notable difference between the two systems, is that Scottish Ministers must notify the Scottish Parliament ‘prior to granting consent’ to a UK Government Minister, whereas a member of the Welsh government must lay a written statement giving notification of any relevant statutory instrument (SI) within three working days of it being laid before the UK Parliament.

New sifting procedure

A new ‘sifting’ procedure created by the EUW Act, however, provides an opportunity for stakeholders to influence consideration of certain SIs. The sift process requires a Minister to lay proposed negative statutory instruments in Parliament, so that a committee of each House can consider whether the draft SI should be subject to negative or affirmative procedure.

In the House of Commons the European Statutory Instruments Committee (ESIC) was established to carry out this function. In the House of Lords the sifting role has been added to the work of the Secondary Legislation Scrutiny Committee (SLSC). The committees have 10 sitting days to recommend whether the draft SI should be subject to negative or affirmative procedure and, whilst the Minister is not obliged to follow the recommendation of either committee, he or she must give reasons for disagreeing with it.

Both committees are committed to pubic engagement and welcome comments to help inform the ‘sifting’ process for individual proposed negative instruments. These comments may also feed into overall consideration of the SI.

As part of its wider dissemination of Brexit-related information, the Assembly Research and Information Service has created a web resource which tracks the use of proposed negative instruments, in order to identify and highlight those in which a UK Minister uses the correcting or implementing power in areas within the competence of the devolved authorities in Northern Ireland.

On the UK Parliament website, SIs are listed under one of five procedures, including the ‘proposed negative’ procedure. These proposed negative instruments also appear in a dedicated page on the gov.uk website.