Proposed Negative Statutory Instruments   Recommended for Affirmative Procedure

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

Published: 27 July 2018
Sift end date: 11 October 2018

The TBR establishes a statutory procedure for the European Commission to examine concerns about trade barriers in non-EU (“third”) countries. Under the TBR, businesses, trade associations and Member States can present a complaint to the Commission with evidence of the trade barrier. Where a trade barrier is deemed to have a significant impact on the EU, the Commission is tasked with investigating and attempting to resolve the barrier. The TBR will no longer apply to UK stakeholders after the UK’s exit from the EU and will be superseded by new UK market access processes. 

The ESIC indicated that it ‘…believed that Members will want to scrutinise the transition to resolution of trade barriers through non-statutory provisions further and that the issues raised are of sufficient political sensitivity and commercial and economic importance to warrant debate.’

The SLSC stated ‘We are not persuaded by the Minister’s statement. As we made clear in our report on sifting “proposed negative instruments” under the Withdrawal Act, we intend to apply the overarching test of whether the subject matter of an instrument and the scope of any policy change effected by it is of such significance that the House would expect to debate it. 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 provide only a non-statutory approach. In the EM, DIT sets out the features of a non-statutory procedure, but, while describing the limitations of the TBR, DIT does not explicitly address the possibility that, after the UK leaves the EU, domestic arrangements could include a statutory procedure alongside non-statutory arrangements. We recommend that this instrument should be subject to the affirmative resolution procedure.’

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

Published: 25 July 2018
Sift end date: 20 September 2018

These Regulations are made under the European Union (Withdrawal) Act 2018. They amend legislation which makes provision for when flags may be flown on government buildings and court houses in Northern Ireland. In particular the Regulations remove the requirement to fly the Union flag, and where a building has two flagpoles, the European flag, on Europe Day (May 9th).

Currently, the arrangements for the flying of the Union flag from government buildings in
Northern Ireland are set out by the Flags Regulations (NI) 2000, as amended by the Flags
Regulation (NI) (Amendment) 2002. These Orders allow the Secretary of State to make regulations on the flying of flags on Government buildings in Northern Ireland after consulting the Northern Ireland Assembly. The issue of flags has been jointly dealt with by the Northern Ireland Office and the devolved administration, and the 2000 Order and Regulations remain in force.

The 2000 Regulations are being amended to remove the requirement to fly the Union flag (and where applicable, the European flag) from Northern Ireland Government buildings and court buildings on Europe Day following the United Kingdom ’s withdrawal from the European Union

If the 2000 Regulations are not amended, Europe Day will remain as a designated flag flying day in Northern Ireland following the United Kingdom’s withdrawal from the European Union. This will mean that there will be a continuing legal obligation to fly the Union flag and where applicable (i.e. if a building has two flag poles) to fly the European flag from Northern Ireland Government buildings and court buildings on Europe Day. 3

This instrument is 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 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.

The ESIC noted that the issue of flags in Northern Ireland is of legal and political sensitivity. The Committee also noted 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.

The SLSC stated that ‘Flag flying is a controversial issue in Northern Ireland and given the political and legal sensitivity of this matter we believe the House would expect to debate it. We therefore recommend that this instrument should be subject to the affirmative resolution procedure.’