UK MINISTERS ACTING IN DEVOLVED AREAS 

 

 

111 - The Food, Drink, Veterinary Medicines and Residues (Amendments etc.) (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

W/C 25/02/2019

Date sifting period ends in UK Parliament

N/A

Written statement under SO 30C: 

Paper 44

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 of, and paragraph 1 of Schedule 4 and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018.

 

The majority of this instrument corrects retained EU law on Geographical Indication (GI) schemes. The remainder makes a small number of non-GI provisions on sector standards for wines and spirits and on veterinary medicines.

 

GIs are a form of intellectual property protection for the names of agricultural, food and drink products, the qualities or characteristics of which are attributable to the region or locality where they are produced and/or the traditional methods by which they are produced. Examples include Welsh Lamb, Scotch Whiskey, Kentish Ale and Lough Neagh Eels.

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. Standing Order 30C.3(ii) states that the written statement must “specify any impact the statutory instrument may have on the Assembly’s legislative competence and/or the Welsh Ministers’ executive competence”.
  2. The Welsh Government has stated the following in its written statement:

“This instrument transfers functions to the Secretary of State. Functions transferred to the Secretary of State constitute functions of a Minister of the Crown for the purposes of Schedule 7B to [the Government of Wales Act 2006]. A future Assembly Bill seeking to remove or modify these functions could trigger a requirement to consult the UKG.” [emphasis added]

  1. The Welsh Government, in its written statement, has indicated that there has been disagreement with the UK Government as to whether Protected Food Names and GI schemes are devolved or reserved.
  2. As the UK Government considers these matters to be reserved, from its perspective they are not subject to the terms of the Intergovernmental Agreement. The Welsh Government considers the matters to be devolved.
  3. The Welsh Government has sought joint decision making functions within this instrument in relation to food names and GIs, but the UK Government has maintained its view that these matters are reserved.
  4. The Welsh Government has indicated that it has not been possible to resolve these matters within the timeframe required to ensure a functioning statute book.
  5. The Secretary of State has given written assurances to the Minister for Environment, Energy and Rural Affairs that all Devolved Administrations will be involved in the operation of a new UK-wide scheme. A Memorandum of Understanding is set to underpin this instrument, and the Welsh Government states that it is seeking to ensure that the Welsh Ministers will provide a meaningful role in the administration of the scheme.
  6. The Welsh Government has therefore given consent on the basis that this will be addressed in due course and it has been clarified that this consent is without prejudice to its position on legislative competence.
  7. Standing Order 30C.3(iii) states that “where the Welsh Ministers consented to UK Ministers making the relevant statutory instruments, explain the reasons why consent was given.”
  8. The Welsh Government’s written statement has clearly explained that consent was given for corrections to be made by the UK Government on matters relating to Wine, Spirits and Veterinary medicines in relation to, and on behalf of, Wales for reasons of efficiency, expediency and due to the technical nature of the amendments.
  9. However, the written statement does not clearly explain why consent was given in relation to Protected Food Names and GI schemes despite a lack of clarification on whether these matters are devolved or reserved.
  10. Separately, in relation to the drafting of the Welsh Government’s written statement, Legal Advisers note that the statement refers to the title of the instrument as being “the Food, Drink, Veterinary Medicines and Residues (Amendments etc.) (EU Exit) Regulations 2019”. In reality, the title of this instrument is “the Food and Drink, Veterinary Medicines and Residues (Amendment etc.) (EU Exit) Regulations 2019” [emphasis added; “Amendment” is singular].

 

The above summary and the content of the Explanatory Memorandum to these Regulations confirm their effect and the extent to which these Regulations would enact new policy in devolved areas.

 

Legal Advisers draw attention to paragraphs 3 and 4 of the above commentary on the statement by the Welsh Government in relation to paragraph 8 of the Memorandum on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks.