UK MINISTERS ACTING IN DEVOLVED AREAS
117 - The Agriculture (Legislative Functions) (EU Exit) Regulations 2019 Laid in the UK Parliament: 13 February 2019
Sifting
Subject to sifting in UK Parliament?	No
Procedure:	Affirmative
Date of consideration by the House of Commons European Statutory Instruments Committee	N/A
Date of consideration by the House of Lords Secondary Legislation Scrutiny Committee	N/A
Date sifting period ends in UK Parliament	N/A
Written statement under SO 30C:	Paper 56
SICM under SO 30A (because amends primary legislation)	Not required
Scrutiny procedure
Outcome of sifting	N/A
Procedure	Affirmative
Date of consideration by the Joint Committee on Statutory Instruments	Not known
Date of consideration by the House of Commons Statutory Instruments Committee	Not known
Date of consideration by the House of Lords Secondary Legislation Scrutiny Committee	Not known
Commentary These Regulations are proposed to be made by the UK Government pursuant to section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018. This instrument amends provisions of European Union (“EU”) legislation relating to the EU Common Agricultural Policy and the European Maritime and Fisheries Fund, which currently confer legislative functions on the European Commission. Under the amendments, these functions will instead be exercisable by public authorities in the United Kingdom (“UK”). In so doing, this instrument changes the identity of the public authority which carries out the specific functions under the EU Regulations set out in the Welsh Government statement.  It also converts EU procedures to UK procedures, as appropriate.  The functions are conferred on the Secretary of State, Scottish Ministers, Welsh Ministers and DAERA in Northern Ireland to exercise in their respective areas as detailed in section 6 of the Explanatory Memorandum.  The Secretary of State may also exercise the functions on behalf of a devolved administration, but only with their consent. The regulations are to be subject to the affirmative procedure at Westminster. Legal Advisers make the following comments in relation to the Welsh Government’s statement dated 18 February 2019 regarding the effect of these Regulations: (1) The statement says: “This SI contains provision which enables the Welsh Ministers to exercise functions in relation to Wales without encumbrance and for the Welsh Ministers to provide consent to the Secretary of State to exercise functions in relation to Wales. Functions transferred to the Secretary of State to be exercised concurrently with the consent of the Welsh Ministers  constitute functions of a Minister of the Crown that relate to a qualified devolved function for the purposes Schedule 7B to the Government of Wales Act 2006. This therefore may be a relevant consideration in the context of the Assembly’s competence to legislate in the future in these areas. [our emphasis] Functions transferred so that they are exercisable by the Secretary of State alone or to the Secretary of State but which are only exercisable with the consent of the Devolved Authorities in relation to devolved territories constitute functions of a Minister of the Crown for the purposes of Schedule 7B to Government of Wales Act 2006. A future Assembly Bill seeking to remove or modify these functions could trigger a requirement to consult the UK Government.” [our emphasis] Standing Order 30C.3(ii) requires the written statement to “specify the impact the statutory instrument may have on the Assembly’s legislative competence and/or the Welsh Ministers’ executive competence;”  This statement (and in particular the sentences highlighted above) suggests rather than specifies. Clarification was sought by the Committee on a similar point in relation to the Nutrition (Amendment etc.) (EU Exit) Regulations 2019.  In her response of 7 February 2019 to the Committee’s letter of 31 January 2019, the Minister referred to her response to queries raised in relation to the Plant Breeders’ Rights (Amendment etc.) (EU Exit) Regulations 2018. Here, the Minister states that: “Welsh Government officials are in contact with the Wales Office about the unintended restrictions on the Assembly’s competence created by powers conferred in EU Exit SIs and other legislation, which engages paragraphs 8, 10 and 11 of Schedule 7B of the Government of Wales Act. Officials are examining the issue in detail and considering how it can best be resolved. The Welsh Government will keep the National Assembly, including the Constitutional and Legislative Affairs Committee, informed about the progress of these discussions.” (2) Paragraph 6.2. of the Explanatory Memorandum states as follows: “The corrections made by this instrument relating to CAP financing and management, CAP Direct Payments schemes and CAP Rural Development will create legislative regimes for the UK that will respect the UK devolution settlements. The way in which legislative functions will be exercised will depend on the content and scope of the power in question. In most instances, where provisions are devolved, the legislative powers will be transferred to the relevant Ministers or Department of the constituent nations, but with provision for the Secretary of State to act on behalf of Scottish Ministers, Welsh Ministers or the Department of Agriculture, Environment and Rural Affairs (“DAERA”), where those Ministers or Department consent. The ability of the Secretary of State to be able to act for one or more of the devolved administrations will allow for powers to be exercised uniformly across the UK or across certain constituent nations, where it is convenient to do so. In certain cases, the ability of the Secretary of State to act with consent of Ministers does not apply to Wales.” [our emphasis] The Explanatory Memorandum does not explain what those cases are.  The Welsh Government statement does not refer to this point, let alone explain when it applies or why a different approach has been taken in those cases.  The Committee may wish to seek clarification from the Minister. The Welsh Government’s statement does not identify which legislative powers of the Assembly or executive powers of the Welsh Ministers are affected by this instrument. Legal advisors recommend that clarification is sought on which devolved powers are affected. Subject to the above, the above summary and the content of the Explanatory Memorandum to these Regulations confirm their effect. Legal Advisers do not consider that any significant issues arise under paragraph 8 of the Memorandum on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks in relation to these Regulations.