Scrutiny of European Statutory Instruments

That the following Standing Order shall be made:

1. For the purposes of paragraph 17 of Schedule 7 to the European Union (Withdrawal) Act 2018 and paragraph 6 of Schedule 5 to the Retained EU Law (Revocation and Reform) Act 2023 the committee charged with considering draft instruments and related documents shall be the committee appointed under Standing Order No. 152 to examine the expenditure, administration and policy of the Department laying the draft instrument or, in respect of an instrument or document laid by a Minister in the Cabinet Office, the Public Administration and Constitutional Affairs Committee.

2. A committee considering such a draft instrument or related document shall have the assistance of the Counsel to the Speaker.

3. In its consideration of an instrument referred to in paragraph (1) the committee shall consider, in addition to such other matters as it deems appropriate, whether the draft instrument—

(a) contains any provision of the type specified in paragraph 1(2) of Schedule 7 to the European Union (Withdrawal) Act 2018 in relation to which the Act requires that a draft of the instrument must be laid before, and approved by a resolution of, each House of Parliament (the affirmative procedure);

(b) contains any provision of the type specified in paragraph 5(2) of Schedule 5 to the Retained EU Law (Revocation and Reform) Act 2023 in relation to which the Act requires that a draft of the instrument must be laid before, and approved by a resolution of, each House of Parliament (the affirmative procedure);

(c) otherwise appears to make an inappropriate use of the negative procedure;

and shall report to the House if it is of the opinion that the negative procedure should not apply.

4. This Standing Order shall lapse—

(a) in so far as it relates to documents laid in accordance with paragraph 17(3)(b) of Schedule 7 to the European Union (Withdrawal) Act 2018 (and matters arising from the consideration of such documents), at the end of the period after which no more regulations may be made under section 23(1) of that Act;

(b) in so far as it relates to documents laid in accordance with paragraph 6(3)(b) of Schedule 5 to the Retained EU Law (Revocation and Reform) Act 2023 (and matters arising from the consideration of such documents), at the end of the period after which no more regulations may be made under Sections 11, 12, or 14 of that Act.—(Lucy Powell.)

15:54:00

Scrutiny of the laws that we make and that bind us is very important, and it is exceedingly important when the origins of the laws are not within our own parliamentary framework. Of course, in the part of the United Kingdom from which I come, Northern Ireland, in over 300 areas the laws are made not by this House or the Stormont Assembly, but by a foreign Parliament that we do not elect—the European Parliament. That underscores the huge importance of effective scrutiny. In so far as this motion slightly improves the situation, it is welcome, but I need to make three or four points. Is the inference of this motion that there has been no scrutiny of these matters since the demise of the European Scrutiny Committee in or about April of last year? If so, a vast swathe of laws have obviously gone unscrutinised. The former Chairman of the European Scrutiny Committee told this House in March 2023 that, in the two years from 2021 to 2023, 640 EU laws had been imposed on Northern Ireland. How many have been imposed since, and how many of them have been scrutinised? Since Northern Ireland is the region most affected by many of these laws, I have to register my disappointment that not a single Member from Northern Ireland was proposed for the Public Administration and Constitutional Affairs Committee. That is a huge failure to give those I represent some confidence that scrutiny is taking place and is effective.

Does the hon. and learned Gentleman agree with me, as someone who sat on the European Scrutiny Committee in the last Parliament, that it is no surprise that the Labour Government do not want to scrutinise this legislation coming from the European Union, because for much of the last Parliament, with the exception of the former Member for Dagenham and Rainham, Jon Cruddas, the Labour Members on the then European Scrutiny Committee never turned up?

I hear what the hon. Gentleman says and I do not gainsay it. If that is so, it is a very poor reflection on the interest in scrutiny. Not only do we have this lacuna in scrutiny of a year or more; we have the very unsatisfactory position of there being no transparency—there is no public list of all the imposed EU laws. It does not exist, from what I am told. How can it be right for citizens in any part of this United Kingdom to be governed by laws when there is not even a list of all those laws? I look to the Government for a commitment that there will at least be the transparency of publishing a list of all relevant regulations that are imposed—and “imposed” is the correct word—on Northern Ireland from a foreign Parliament. Some may say, “Oh, but doesn’t the Stormont Assembly have a Democratic Scrutiny Committee?”, and, of sorts, it does, but on 2 February the Secretary of State for Northern Ireland wrote to the Speaker of the Northern Ireland Assembly informing him of the types of laws that will be reported to the Assembly, and it does not include all laws. We have the so-called Stormont brake, which applies only to any law amending an existing EU law. We have applicability motions, which can apply to any new law, but we do not have any right of scrutiny within the Northern Ireland Assembly of what we would call statutory instruments. There simply is no capacity to scrutinise them. We recently had a troubling example of such a statutory instrument. Commission implementing regulation 2025/89 creates a situation where, for the first time in any part of this United Kingdom, and with no consultation with our consumers or our elected representatives, we now have an authorised EU law whereby mealworms and insects can be included in food products. That EU law has been imposed upon Northern Ireland without any scrutiny in Stormont or in this place. Would that type of EU implementing regulation be on the agenda of the Public Administration and Constitutional Affairs Committee, or would it just pass under the radar, as has been happening for so long? Vast swathes of important law are not classified as devolved under the protocol arrangements, so they are never scrutinised in the Northern Ireland Assembly, nor can they ever be scrutinised. Nothing that arises under the EU’s customs code, under its VAT regime or under state aid is devolved. Those matters are reserved to this place. Regulations are made from time to time on the customs code, which is the most offensive of all the protocol arrangements, because it is the one that says, “Northern Ireland is to be treated as EU territory. GB is to be treated as a third or foreign country, and thus the goods coming from GB to Northern Ireland—coming from a third country—have to be subject to the rigours of an international customs border.” All that arises under the EU’s customs code, and none of that can be scrutinised in Northern Ireland. None of it has been scrutinised in this House, either.

On the lack of scrutiny, does the hon. and learned Member agree that as time goes on and the American Administration begin to look at what they may or may not do vis-à-vis trading arrangements with the EU, it is all the more important—it was important anyway—that we have close scrutiny, because of the deals that may come about between the American Administration, the UK and possibly the EU?

Yes, and there is much talk about tariffs. Think of the conundrum that would be created if President Trump imposed tariffs on the EU. Northern Ireland, treated as EU territory, would, I presume, be subject to those tariffs, yet we are told that we are part of the United Kingdom. That is all because of the application to Northern Ireland of the customs code. If there were corresponding responses from the EU in that scenario, those would, under adjustments to matters arising under its customs code, apply to Northern Ireland it seems, and all without scrutiny. While the establishment of this Committee, belated as it is, is welcome, it is important that we are able to understand that it will seriously address the scrutiny issues, as the previous Committee under Sir Bill Cash did. I pay tribute to him for the work that he did, but there has been this great gap in the meantime with effectively no scrutiny whatever. Now that scrutiny will be done by a Committee without, as I have said, a Northern Ireland representative even on it.

Does the hon. and learned Member accept that even when we had the European Scrutiny Committee, which was able to deal exclusively with such issues, there were many EU regulations that it did not have the opportunity to discuss? Given the importance of such regulations not just to Northern Ireland but, as he pointed out, to the whole of the United Kingdom, does he agree that this leaves us vulnerable to detrimental changes in law that will not get enough examination in the House?

Absolutely. There is a sheer volume of EU law that still applies in Northern Ireland. In annex 2 to the protocol, there are 287 such areas of law, and many have been added to it since. That breeds further regulation of a huge quantity, yet there is a lack of scrutiny. The speed with which regulation is applied and the lack of opportunity for scrutiny is important. One of the complaints I hear from the Democratic Scrutiny Committee in the Northern Ireland Assembly is that it is not given the time or notice to deal with issues, even if there were the inclination among some to do so.

It is even worse than that. On occasions, regulations have gone through and been adopted before the Committee knew they were there.

Yes. The Cabinet Office undertakes to notify on a weekly basis, but I think that is honoured more in default than anything else. From a scrutiny point of view, we are in a perilous position. I do hope that the Committee will grasp the issue and take it seriously. My only regret is there is not a Member from Northern Ireland on the Committee to hold feet to the fire. That goes to the heart of what should affect and concern us all as representatives. I ask Members of the House who come from other parts of the United Kingdom how they would feel if there were 300 areas of law that they could not make or change and regulations—with votes on them—were not even being properly scrutinised. I think we know how others would feel. Frankly, we ask for nothing that others do not have for themselves.

16:07:00

I thank the hon. and learned Member for North Antrim (Jim Allister) for that contribution, which I am sure the House has heard. May I first explain to hon. Members that the motion on the Order Paper is not anything to do with European Scrutiny Committee? We dealt with that previously. The motion is about the European Statutory Instruments Committee, a specific Committee whose role was to consider whether certain proposed negative instruments in relation to the UK’s withdrawal from the EU should instead follow the affirmative procedure. In the Committee’s absence, all measures have proceeded through the affirmative procedure instead. The hon. and learned Gentleman asked about the numbers, which, in fact, are quite low. I think that previously the Committee looked at about 50 instruments per parliamentary Session, but by the year of the final Session of the last Parliament it was down to just 11, and it has been lower since then as well. We are talking about a tiny number of instruments being considered for the affirmative procedure.

I will give way if the intervention is on that point.

In regard to that, as the hon. and learned Member for North Antrim (Jim Allister) asked, if there is such a low number of instruments and the Committee is not to meet so regularly, why not give Northern Ireland a place on it?

The proposal is that the Committee will not meet and that measures will be considered by the relevant Select Committee. So, were measures to relate to Northern Ireland, they would be considered by the Northern Ireland Affairs Committee. That is what the motion relates to, and not the European Scrutiny Committee, which a number of hon. Members mentioned. The European Statutory Instruments Committee did specific work, and we now feel that it would not be value for money for the House to pay for a Chair and to facilitate a Committee that would need to meet only on rare occasions to consider whether a statutory instrument should go through the affirmative route, As I said, in the absence of the Committee, all such instruments have gone through the affirmative route, and in future they will be considered by the relevant Select Committee of this House, which I am sure in many instances will be the Northern Ireland Affairs Committee. I hope that that reassures Members. I take these matters extremely seriously. It is very important that this House scrutinises measures, whether statutory instruments generated by the Government, other legislation or the rolling on of measures from the European Union or elsewhere. I am happy to keep under consideration how best we can consider these matters should the context change. If Members in the Chamber today have other ideas, they can let me know and I will happily consider them. Question put and agreed to.