House of Commons European Statutory Instruments Committee First Report of Session 2017–19 Documents considered by the Committee on 5 September 2018 Drawing attention to: The European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018 The Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2018 The Postal and Parcel Services (Amendment etc.) (EU Exit) Regulations 2018 The Trade Barriers (Revocation) (EU Exit) Regulations 2018 Report, together with formal minutes Ordered by the House of Commons to be printed 5 September 2018 HC 1532 Published on 7 September 2018 by authority of the House of Commons European Statutory Instruments Committee The European Statutory Instruments Committee is appointed by the House of Commons to examine and report on: (i) any of the following documents laid before the House of Commons in accordance with paragraph 3(3)(b) or 17(3)(b) of Schedule 7 to the European Union (Withdrawal) Act 2018— (a) a draft of an instrument; and (b) a memorandum setting out both a statement made by a Minister of the Crown to the effect that in the Minister’s opinion the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (the negative procedure) and the reasons for that opinion, and (ii) any matter arising from its consideration of such documents. Current membership Sir Patrick McLoughlin MP (Conservative, Derbyshire Dales) (Chair) Kirsty Blackman MP (Scottish National Party, Aberdeen North) Nic Dakin MP (Labour, Scunthorpe) Mr Philip Dunne MP (Conservative, Ludlow) Ms Angela Eagle MP (Labour, Wallasey) Sir David Evennett MP (Conservative, Bexleyheath and Crayford) Vicky Ford MP (Conservative, Chelmsford) Patrick Grady MP (Scottish National Party, Glasgow North) Trudy Harrison MP (Conservative, Copeland) Julia Lopez MP (Conservative, Hornchurch and Upminster) Ian C. Lucas MP (Labour, Wrexham) Bridget Phillipson MP (Labour, Houghton and Sunderland South) Mary Robinson MP (Conservative, Cheadle) Andrew Selous MP (Conservative, South West Bedfordshire) Jo Stevens MP (Labour, Cardiff Central) Liz Twist MP (Labour, Blaydon) Powers The Committee’s powers are set out under a Temporary Standing Order of 16 July 2018. Publications The reports of the Committee are published in print by Order of the House. All publications of the Committee are available on the Internet from www.parliament.uk/esic. Committee staff The current staff of the Committee are Mike Winter (Clerk), Yohanna Sallberg (Second Clerk), Paul Simpkin (Senior Committee Assistant) and Zsofia Kiss (Committee Assistant). Advisory Counsel: Daniel Greenberg, Klara Banaszak and Vanessa MacNair. All correspondence should be addressed to the Clerk of the European Statutory Instruments Committee, House of Commons, London SW1A 0AA. The telephone number for general inquiries is: 020 7219 7597; the Committee’s email address is: [email protected]. First Report of Session 2017–19 1 Contents Instruments recommended for the affirmative procedure 3 1 The European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018 3 2 The Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2018 3 3 The Postal and Parcel Services (Amendment etc.) (EU Exit) Regulations 2018 4 4 The Trade Barriers (Revocation) (EU Exit) Regulations 2018 5 Instruments recommended for the negative procedure 6 Formal minutes 8 First Report of Session 2017–19 3 Instruments recommended for the affirmative procedure At its meeting on 5 September 2018 the Committee considered proposed negative instruments laid by the Government and has recommended that the appropriate procedure for the following instruments is for a draft of them to be laid before, and approved by a resolution of, each House of Parliament before they are made (i.e. the affirmative procedure). 1 The European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018 1.1 The European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018 amend provisions deriving from EU legislation (Council Regulation (EC) No 723/2009 of 25 June 2009), “the ERIC Regulation”. The ERIC Regulation sets out the legal framework under which an ERIC is created and operates. ERICs are organisations or structures set up to deliver major international science and research collaborations in the EU, in which the Government states it is “crucial” that the UK retains the ability to participate. 1.2 The Committee notes the Government’s Explanatory Memorandum which states that the Regulations amend “provisions which are inappropriate or redundant as a result of the withdrawal of the UK from the EU.” The Government further argue that this does not represent a policy change and will ensure that ERICs will continue to have the same attributes as they had under the ERIC Regulation before exit day. However, the Committee believes that further explanation is necessary on how the ERIC Regulation, as it forms part of retained EU law, will facilitate UK membership as a non-EU Member State in these consortia after the UK has left the EU. While it can be argued that the policy has not changed, future UK participation as a third country will inevitably mean that the policy functions in a different context. 1.3 The Committee also notes the continued, albeit limited, role for the European Court of Justice in adjudicating on the granting of ERIC status and assessing compliance with the rules of ERIC itself. This is an area the House may wish to explore further. 1.4 The Committee therefore recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of political and legal importance. 2 The Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2018 2.1 Unlike flag flying from Government buildings in the rest of the United Kingdom (which is advised by the Department for Digital, Culture, Media and Sport, on an annual basis, via a list of designated flag flying days), flag flying from Northern Ireland Government buildings is regulated by the Flags Regulations (Northern Ireland) 2000 (‘the 2000 Regulations’) (as amended). 4 First Report of Session 2017–19 2.2 The Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2018 are required as it would be inappropriate and unnecessary to retain the legal obligation to observe Europe Day in Northern Ireland once the United Kingdom ceases to be a member of the European Union. In addition, the instrument will also ensure that Northern Ireland reflects custom and practice in the rest of the United Kingdom regarding Europe Day, which will cease to be a designated day in Great Britain following the United Kingdom’s withdrawal from the European Union. The non-legislative guidance for Great Britain will be updated to reflect this position. 2.3 The issue of flags in Northern Ireland is of legal and political sensitivity. The Committee notes that as a matter of policy there is nothing contentious in the amendments proposed by this instrument, and that they make only the obvious and necessary consequential changes to reflect Brexit. However, the Committee believes that, given the political sensitivity, the House would wish to have the opportunity of satisfying itself of that fact through affirmative resolution scrutiny and debate. 2.4 The Committee therefore recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of political and legal importance. 3 The Postal and Parcel Services (Amendment etc.) (EU Exit) Regulations 2018 3.1 The Postal and Parcel Services (amendment etc.) (EU Exit) Regulations 2018 amend provisions in the Postal Services Acts 2000 and 2011 and revoke the EU Parcel Delivery Regulation, the Postal Services Regulations 1999 and Commission Decision of 10 August 2010. Specifically, these Regulations remove references to the Postal Services Directive 979/67/EC in the Postal Services Act 2000 as the UK will no longer be subject to the terms of the Directive once it withdraws from the EU. 3.2 The effect of the Regulations is largely confined to the removal of redundant references to EU legislation, which is of a sufficiently minor effect to rebut presumption of the use of the affirmative procedure. However, the Committee notes that the Regulations revoke the European Commission’s Decision of 2010, which established the European Regulators Group for Postal Services (‘ERGP’). The Explanatory Memorandum specifies part of the role of that group as facilitating consultation, coordination and cooperation between Member States on postal services. The revocation of the Decision may be a necessary consequence of the UK leaving the EU, but the Committee believes that the Government should provide further information on the effect of the UK’s non-participation in that group, and possible alternatives for future arrangements, recognising that the UK will maintain an interest in an effective postal and parcel service between the UK and the EU after it ceases to be a Member State. These are issues that the Committee believe should be debated. 3.3 The Committee recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of