Lords Amendments to Schedule 7: Regulations
Lords Amendments 106 and 116
113 Lords Amendments 106 and 116 are consequential on Lords Amendments 11, 12, 14 and 23 and would remove the procedure attached to provisions that establish public authorities in the UK made under the correcting and withdrawal agreement powers.
Lords Amendments 107 and 117
114 Lords Amendments 107 and 117 would remove the trigger for the affirmative procedure for SIs which impose fees under the correcting and withdrawal agreement powers. This reflects the removal of the ability to do this which would be provided for by amendments 13 and 22.
Lords Amendments 108, 111 and 129
115 Lords Amendments 108, 111 and 129 would apply a sifting committee procedure to negative instruments laid by Welsh Ministers under their powers in Schedule 2.
116 It provides that in order to make a negative instrument under those powers, a Welsh Minister must have made a written statement that in their opinion this is the correct procedure and they must have laid the instrument and a memorandum setting out their opinion before the National Assembly for Wales. They must also have received a recommendation on the appropriate procedure from a committee of the Assembly, or the required period for the recommendation to be made must have elapsed.
117 None of these requirements, however, preclude Welsh Ministers from proceeding with the negative procedure, and the requirements are also subject to a general caveat that a Welsh Minister can use another procedure – either the draft affirmative procedure or make a declaration that reasons of urgency mean that it is necessary to make the regulations subject to the made-affirmative procedure.
Lords Amendments 109, 114, 135 and 169
118 Lords Amendments 109, 114, 135 and 169 would allow for the made-affirmative urgent scrutiny procedure to be followed when devolved authorities make regulations under their powers in Schedule 2.
119 The procedure would operate in the same way that it does for UK Ministers. An instrument under this procedure can be made by the devolved authority without being laid before the relevant devolved legislature in draft, where accompanied by a statement that in the devolved authority’s opinion this is necessary as a matter of urgency. The instrument must then be laid before the relevant legislature and will cease to have effect after 28 days unless approved by a vote of the legislature.
Lords Amendment 110* and 128*
120 Lords Amendment 110 would provide for an alternative sifting process. It would require that all statutory instruments made under the correcting, withdrawal agreement and consequential powers – as well as negative instruments made under other Acts that have the same purpose – which the Minister proposes to make under the negative procedure, are to be laid in draft before both Houses of Parliament. They must also be accompanied by a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the negative procedure.
121 A committee of each house would then have 10 sitting days to make a recommendation for the affirmative procedure to apply instead. If one or both committees made that recommendation, it would be binding on the Government, unless it was overruled by the House within a further a period of 5 sitting days. Each House also has a 15 day period in which it may also resolve that the affirmative procedure must apply to an instrument, irrespective of the committee making any recommendation.
122 Lords Amendment 128 would remove the sifting committee provisions which applied to powers other than clause 7(1). This is as a consequence of amendment 110 applying a single provision to all the powers. The Bill as introduced to the Lords had two identical provisions for sifting applying, with the same effect, to different selections of powers.
Lords Amendments 112, 113, 133 and 134
123 Lord Amendments 112, 113, 133 and 134 would substitute "28 days" for "one month" as the period after which an instrument made under the urgent made-affirmative procedure cease to have effect unless, during that period, the instrument is approved by resolution of each House of Parliament.
Lords Amendments 115
124 Lords Amendment 115 is consequential on the removal of clause 8 by Lords Amendment 18. It would remove its scrutiny provisions from the Bill.
Lords Amendments 118 and 119
125 Lords Amendments 118 and 119 are consequential on the removal of the power to implement the withdrawal agreement’s ability to amend the EU (Withdrawal) Act itself.
Lords Amendment 120
126 Lords Amendment 120 would require that regulations made under the power in new subsection (4B) of clause 11 to repeal the powers to limit devolved competence in relation to retained EU law would be subject to the affirmative procedure, requiring approval by both Houses of Parliament before they can be made.
Lords Amendments 121 to 123
127 Lords Amendments 121, 122 and 123 would require all statutory instruments containing provisions made under Schedule 4 of the Bill (that do not relate to altering the amount of a fee of charge to reflect changes in the value of money) be subject to the affirmative procedure.
Lords Amendment 124
128 Lords Amendment 124 would ensure the changes introduced through amendments 121, 122 and 123 also apply to instruments made by the devolved authorities acting alone and when acting jointly with a UK Minister.
Lords Amendment 125*
129 Lords Amendment 125 would attach an affirmative scrutiny procedure to regulations made under the new power to set exit day. This is consequential on amendment 37.
Lords Amendment 126
130 Lords Amendment 126 would allow the consequential power to be subject to the draft affirmative procedure as an alternative to the negative procedure. This would allow negative instruments made under the consequential power to be sifted by the Committees.
Lords Amendment 127
131 Lords Amendment 127 would signpost the sifting committee provisions applying to negative statutory instruments made under the consequential power.
Lords Amendment 130, 131 and 136
132 Lords Amendments 130, 131 and 136 are consequential on the removal of clause 8 by Lords Amendment 18 and would remove references to clause 8 from provisions about the urgent procedure.
Lords Amendment 132
133 Lords Amendment 132 would allow for a statutory instrument containing consequential amendments to be made under the Bill’s urgent made-affirmative procedure.
Lords Amendment 137
134 Lords Amendment 137 would remove the requirement for sifting by the committees of negative statutory instruments made under the consequential power if the instrument contains a declaration that the Minister is of the opinion that, by reasons of urgency, it is necessary to make the regulations without sifting.
Lords Amendment 138
135 Lords Amendment 138 would make clear that the powers in the Bill can be exercised before exit day so as to modify retained EU law which will not exist until exit day (retained direct EU law, retained EU law by virtue of clause 4 and any other retained EU law). This amendment would confirm the position that such powers are available prior to exit and is necessary in consequence of making express provision on anticipatory exercise in 159 and 162.
Lords Amendment 139
136 Lords Amendment 139 is consequential on the removal of clause 8 by Lords Amendment 18.
Lords Amendment 140
137 Lords Amendment 140 would add the requirement for a number of explanatory statements, as set out in paragraph 22 of Schedule 7, to be produced alongside all statutory instruments made under the consequential power.
Lords Amendment 141
138 Lords Amendment 141 would clarify that the requirement for a number of explanatory statements, as set out in paragraph 22 of Schedule 7, applies to UK Ministers exercising the powers in Schedule 2 jointly with a devolved authority, just as it would apply to them exercising the clause 7(1) and clause 9 and consequential powers when acting alone.
Lords Amendment 142 and 148
139 Lords Amendments 142 and 148 are consequential on the extension of sifting to the Lords.
Lords Amendment 143, 146 and 147
140 Lords Amendments 143, 146 and 147 would require that before an instrument or draft is laid, the relevant Minister must make a written statement as to why, in the Minister’s opinion, there are good reasons for the instrument or draft, and the provision made by the instrument or draft is a reasonable course of action.
Lords Amendment 144
141 Lords Amendment 144 would replace the requirement for the relevant Minister to make a statement explaining the reasons for a statutory instrument with a requirement for a statement explaining the purpose of the instrument. This would provide courts and others with information about what the statutory instrument is intended to do, in the context of the retained EU law it modifies.
Lords Amendment 145
142 Lords Amendment 145 would require a Minister to make a statement alongside all instruments or draft instruments under the key powers in the Bill which create a criminal offence, explaining why, in the relevant Minister’s opinion, there are good reasons for the offence and for the penalty provided in respect of it.
Lords Amendment 149
143 Lords Amendment 149 would require the Scottish Ministers to make the same explanatory statements when exercising their Schedule 2 powers that UK Ministers are required to make under paragraph 22 of Schedule 7.
144 This would include a statement of the ‘good reasons’ for the use of the power, and that the use is a reasonable course of action; a statement of what, if any, amendments are being made to equalities legislation and that the Minister has had due regard to the first limb of the Public Sector Equality Duty; a statement explaining the instrument, the relevant law before exit day, the instrument’s effect on retained EU law and the purpose of the instrument; and, where exercising the powers in Schedule 2 to create a criminal offence, a statement of the ‘good reasons’ for creating a criminal offence, and of the sentence attached.
Lords Amendment 150 and 152
145 Lords Amendments 150 would require a written statement be made by the relevant Minister before an instrument or draft which create a relevant sub-delegated power is laid, explaining why it is appropriate to do so. A relevant sub-delegated power is a power to legislate which is not exercisable by SI (or the devolved equivalent), or is exercisable by someone other than a Minister of the Crown (or devolved administrations). The statement would need to be made in writing and published.
146 If the Minister were to fail to make a statement, a Minister of the Crown would need to make a statement explaining why the relevant Minister has failed to do so.
147 Lords Amendment 152 would require an annual report on how the power has been exercised to be prepared, laid before both Houses of Parliament, provided to a Minister of the Crown and published, by the relevant persons to whom a power is sub-delegated, if that power has been exercised during that same year.
Lords Amendment 151 and 153
148 Lords Amendments 151 and 153 would require that a written statement be made by the relevant Scottish Minister before an instrument or draft is laid, explaining why it is appropriate to create a relevant sub-delegated power.
149 If the Scottish Minister were to fail to make a statement, they would need to make a statement explaining why they have failed to do so.
150 An annual report on how the power has been exercised would also need to be be laid before the Scottish Parliament by the relevant persons to whom a power is sub-delegated if that power has been exercised during the same year.
Lords Amendment 154
151 Lords Amendment 154 would require a Minister of the Crown to make a written statement explaining the reasons for the Minister’s opinion that, by reason of urgency, it is necessary to use the urgent made-affirmative procedure, if they use that procedure.
Lords Amendment 155
152 Lords Amendment 155 would require a Scottish Minister to make a written statement explaining the reasons for the Minister’s opinion that, by reason of urgency, it is necessary to make the regulations without a draft of the instrument containing them being laid before, and approved by a resolution of the Scottish Parliament.
Lords Amendment 156
153 Lords Amendment 156 would allow for all the Bill’s powers to be included in paragraph 24 of Schedule 7. This already provides that a different procedure can be applied to a statutory instrument that revokes, amends or re-enacts regulations made under the Bill, to the one under which it was originally made.
Lords Amendment 157
154 Lords Amendment 157 would adjust the wording of provisions that allow for the combination of instruments to provide greater clarity as to the legal effect.
Lords Amendment 158
155 Lords Amendment 158 would clarify that the definition of ‘an instrument containing regulations’ for the purposes of combining instruments includes both an instrument containing only provisions that are regulations and an instrument containing provisions that are regulations and provisions that are not regulations.