Explanatory Notes

Part 1: Scrutiny of powers to deal with deficiencies

224 Paragraphs 1 to 3 set out the three parliamentary scrutiny procedures by which regulations can be made under the power to deal with deficiencies arising from withdrawal in clause 7 and the circumstances in which each will apply. The main procedures are the draft affirmative, the negative and, for urgent cases, the made affirmative.

225 Draft affirmative resolution procedure (paragraph 1(1) of Schedule 7): These instruments cannot be made unless a draft has been laid before and approved by both Houses.

226 Negative resolution procedure (paragraph 1(3) of Schedule 7): These instruments become law when they are made (they may come into force on a later date) and remain law unless there is an objection from either House. The instrument is laid after making, subject to annulment if a motion to annul (known as a ‘prayer’) is passed within forty days.

227 Made affirmative resolution procedure (paragraph 3 of Schedule 7): These instruments can be made and come into force before they are debated, but cannot remain in force unless approved by both Houses within one month. This procedure can only be used by ministers of the Crown. The Government believes that the exceptional circumstances of withdrawing from the EU might necessitate the use of the made affirmative procedure so the Bill allows for this as a contingency.

Scrutiny of regulations made by Minister of the Crown or devolved authority acting alone

228 Paragraph 1 provides that the draft affirmative must be used if the instrument does one or more of the things listed at sub-paragraph (2):

establishes a new public authority

transfers an EU function to a newly created public authority

transfers an EU legislative function (i.e. a power to make delegated or implementing acts) to a UK body

relates to fees

creates or widens the scope of a criminal offence (although the power cannot be used to create certain criminal offences)

creates or amends a power to legislate

229 Sub-paragraph (3) provides that the negative procedure can be used in other cases.

230 Sub-paragraphs (4) to (9) provide for equivalent affirmative and negative procedures in each of the devolved legislatures.

Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly

231 Paragraph 2 deals with scrutiny by the UK Parliament and the devolved legislatures for instruments made jointly by a minister of the Crown and a devolved authority.

Scrutiny procedure in certain urgent cases

232 Paragraph 3 allows the made affirmative procedure to be used for regulations made by a minister of the Crown in urgent cases.


Prepared 13th July 2017