House of Lords - Companion to Standing Orders - Companion to Standing Orders

Companion to Standing Orders - Companion to Standing Orders Contents

CHAPTER 10

Delegated Legislation and
other matters

DELEGATED LEGISLATION

10.01 Acts of Parliament do not make detailed provision for many of the subsidiary and procedural matters necessary to give effect to the policy embodied in the Act. So Acts often confer legislative power upon the government. This legislative power is exercised by means of "delegated" (or "secondary") legislation. Delegated legislation is made most often by ministers but may also be made by other persons and bodies. The statutory basis for delegated legislation is usually a provision in an Act of Parliament, often referred to as the "parent Act".

General powers of the House over delegated legislation

10.02 The Parliament Acts do not apply to delegated legislation. So delegated legislation rejected by the Lords cannot have effect even if the Commons have approved it. Neither House of Parliament has the power to amend delegated legislation.[429] The House of Lords has only occasionally rejected delegated legislation.[430] The House has resolved "That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".[431] Delegated legislation may be debated in Grand Committee, but must return to the floor of the House if a formal decision is required.[432]

Types of delegated legislation

10.03 Delegated legislation that comes before the House consists mostly of statutory instruments.[433] The parent Act makes clear which procedures apply to the delegated legislation made under its various provisions.

10.04 The most common forms of delegated legislation are:

· affirmative instruments[434] which must be approved by resolutions of both Houses if they are to come into force, or remain in force having been made, or which may not be made except in response to an Address by each House to Her Majesty;

· negative instruments which are subject to annulment by a resolution of either House, i.e. have effect unless specifically rejected;

· "general instruments", which may be required to be laid before Parliament for information but are not subject either to approval or annulment or to any other kind of proceedings;

· instruments not laid before Parliament.

10.05 There are also certain "super-affirmative" procedures, under which there is an opportunity for initial scrutiny of a proposed instrument, before the instrument (possibly revised by the government) is brought forward for approval. Examples include certain legislative reform orders (paragraphs 10.29-31 and human rights remedial orders (paragraphs 10.32-10.35).

10.06 Other types of delegated legislation include:

· hybrid instruments (affirmative instruments which, if they were primary legislation, would be subject to private business standing orders: see paragraphs 10.36-10.43);

· special procedure orders (which are required where certain protected categories of land, such as a common, open space or fuel or field garden allotment[435], are subject to compulsory purchase: see paragraphs 10.44-10.45).

Scrutiny of delegated legislation

10.07 The Delegated Powers and Regulatory Reform Committee examines the way in which bills delegate legislative power, and also legislative reform orders (see paragraphs 11.48-11.50). The Joint Committee on Statutory Instruments and the Merits of Statutory Instruments Committee consider and report on delegated legislation (see paragraph 11.55 and 11.58). The Joint Committee on Human Rights examines proposed remedial orders (see paragraphs 10.32-10.35).

Affirmative instruments

10.08 Affirmative instruments require the express approval of Parliament, or sometimes of the Commons only.[436] The affirmative procedure takes one of three forms, depending on the parent Act. The first is by far the most common:

· an instrument may be required to be laid in draft before both Houses and will not be made or have effect unless both Houses agree to resolutions approving the draft instrument;[437]

· an instrument may be made and have immediate effect, but not continue in force beyond a specified period[438] unless both Houses agree to the appropriate resolutions approving the instrument;

· an instrument may be made by a minister and laid before Parliament but it will have effect only after resolutions have been passed approving it.

10.09 Motions to approve most types of affirmative instrument may not be moved until a report on the instrument from the Joint Committee on Statutory Instruments has been laid before the House.[439] Special considerations apply to certain categories of affirmative instrument, such as those laid under the Legislative and Regulatory Reform Act 2006 and hybrid instruments (see SO 72 and paragraphs 10.19-10.31, 10.36-10.43).

10.10 A motion to approve an affirmative instrument must be moved by a minister of the Crown. If the responsible minister is unable to be in the Chamber, another minister may move the motion on his behalf.

AMENDMENTS AND MOTIONS RELATING TO AFFIRMATIVE INSTRUMENTS

10.11 Opposition to or concern about an affirmative instrument may be expressed in a number of ways (in addition to speaking in the debate on the approval motion):

· Members may give notice of direct opposition by means of an amendment to the approval motion, the effect of which would be to withhold the agreement of the House;

· Members may, by means of an amendment or a separate motion, call upon the government to take specified action (but which will not, even if agreed, prevent the approval of the instrument);

· Members may, by means of an amendment or a separate motion, invite the House to put on record a particular point of view relating to the instrument, but without calling on the government to take any specific action.

10.12 It is usual for all such amendments and motions to be debated at the same time as the substantive approval motion on the instrument. Notice should be given of any intention to divide on a motion or amendment concerning delegated legislation.[440]

MOVING AFFIRMATIVE INSTRUMENTS EN BLOC

10.13 If several affirmative instruments are closely enough related to justify being taken together, the motions for resolutions or Addresses on them may be moved en bloc.[441] It is for the minister in charge, in the first instance, and ultimately for the House, to decide whether groups of instruments qualify for this procedure. An en bloc motion may be moved only with the unanimous leave of the House; if any member objects, motions on the individual instruments must be moved separately to the extent desired.[442] Notice of a motion to take instruments en bloc is given by means of an italic note reminding members of their right to object to taking the instruments en bloc. The italic note must appear in at least two issues of House of Lords Business.

AFFIRMATIVE INSTRUMENTS IN GRAND COMMITTEE

10.14 Affirmative instruments may be considered in Grand Committee. Each instrument is referred on a motion moved by the Leader of the House; once the debate has been held the Grand Committee reports to the House that it has considered the instruments; each instrument is then approved by the House on another separate motion.

10.15 Motions to refer affirmative instruments to a Grand Committee, and motions to approve affirmative instruments after they have been debated in Grand Committee, are normally taken en bloc in the House. The requirements for two sitting days' notice and for the unanimous leave of the House apply as for other en bloc motions.[443]

Negative instruments

10.16 Negative procedure is the most common form of parliamentary control over delegated legislation. Such instruments take effect either immediately or on a specified future day but are subject to annulment in pursuance of a resolution of either House adopted within a specified time limit. A resolution to reject a negative instrument takes the form of a motion that "an Humble Address" be presented to Her Majesty praying that the instrument be annulled.[444] Since 1948 the period during which a negative resolution may be moved ("praying time") has been 40 days in respect of either the negative procedure for annulment or the negative procedure for preventing further proceedings in the case of a draft instrument. Swearing-in days in either House[445] are included in the reckoning of the 40 days, but periods of dissolution, prorogation or adjournment of both Houses for more than four days are not. Praying time in respect of an instrument laid during the recess does not therefore begin to run until one of the Houses sits.

10.17 As with affirmative instruments, critical amendments or motions may be moved relating to negative instruments, inviting the House to call on the government to take action or record a particular point of view, without annulling the instrument itself.

NEGATIVE INSTRUMENTS IN GRAND COMMITTEE

10.18 Negative instruments may be considered in Grand Committee. A motion is tabled in House of Lords Business to take note of the instrument; this may be debated in Grand Committee without a referral motion, and no further proceedings are required once the debate has taken place. If another member were to table a prayer or some other substantive motion on the same instrument, the motion inviting a decision of the House, which could not be taken in Grand Committee, would take precedence. A prayer or other substantive motion may also be tabled following the debate in Grand Committee.[446]

Orders under the Legislative and Regulatory Reform Act 2006

10.19 Under the Legislative and Regulatory Reform Act 2006, ministers have wide-ranging powers to amend primary legislation by order so as to remove or reduce burdens (under section 1) or to promote regulatory principles (under section 2). The Act makes unique provision for determining the parliamentary procedure for such orders.

10.20 A minister wishing to make an order under the Act must first consult on his proposals. Then the minister must lay a draft order before both Houses, with an explanatory document. This must specify certain matters set out in section 14 of the Act. Also, under section 15, it must recommend which of the following parliamentary procedures should apply:

(a) negative resolution

(b) affirmative resolution

10.21 If the minister recommends negative resolution procedure, then that applies unless, within 30 days[447] from the date when the draft order was laid, either House of Parliament requires affirmative or super-affirmative resolution procedure, in which case that applies. If the minister recommends affirmative resolution procedure, then that applies unless, within 30 days, either House requires super-affirmative resolution procedure, in which case that applies. If the minister recommends super-affirmative resolution procedure, then that applies.

10.22 A House may express a requirement under section 15 in one of two ways. It may resolve that a certain procedure shall apply. Or a scrutiny committee may recommend within the 30 days that a certain procedure shall apply, in which case this is deemed to be the requirement of the House unless, within those 30 days, the House resolves otherwise.

10.23 The House of Lords has appointed the Delegated Powers and Regulatory Reform Committee as the committee charged with reporting on draft orders laid under the Act. The three forms of procedure are defined in the Act as follows.

NEGATIVE RESOLUTION PROCEDURE (SECTION 16)

10.24 The minister may make the order unless, within 40 days[448] from the date when the draft order was laid, either

(a) either House of Parliament resolves otherwise, or

(b) a scrutiny committee of either House recommends otherwise, between the end of the 30-day period and the end of the 40-day period, and the House concerned does not reject the recommendation, by resolution, in the same Session.

10.25 If (a) a scrutiny committee of either House recommends against the order and (b) the House concerned rejects the recommendation by resolution, the 40-day period is extended for both Houses by the number of days between (a) and (b).

AFFIRMATIVE RESOLUTION PROCEDURE (SECTION 17)

10.26 The minister may make the order if, after the expiry of 40 days from the date when the draft order was laid, both Houses of Parliament resolve to approve the draft.

10.27 If however a scrutiny committee of either House recommends, between the end of the 30-day period and the end of the 40-day period, that the order should not proceed, then it may not proceed unless the House concerned rejects the recommendation, by resolution, in the same Session.

10.28 Again, if (a) a committee recommends against the order and (b) the House rejects the recommendation, the 40-day period is extended by the number of days between (a) and (b).

SUPER-AFFIRMATIVE RESOLUTION PROCEDURE (SECTION 18)

10.29 During a 60-day period[449] from the date when the draft order was laid, it is exposed for scrutiny, and may be the subject of representations to the minister, a resolution of either House, or a report of a scrutiny committee of either House. The minister must have regard to any such representations, resolution or report.

10.30 At the end of the 60-day period the minister must decide what to do. If the minister decides to proceed with the draft as laid, he must lay before Parliament a statement about any representations made during the 60-day period. If he decides to revise the draft, he must lay before Parliament a revised draft order and a statement about the representations made and the revisions proposed. In each case, the order then proceeds as a normal affirmative order.

10.31 If however a scrutiny committee of either House recommends, between the laying of the statement (or the revised draft and the statement) and the approval of the draft, that the order should not proceed, then it may not proceed unless the House concerned rejects the recommendation, by resolution, in the same Session.

Remedial orders

10.32 Under section 10 of the Human Rights Act 1998, if primary legislation is found by a higher United Kingdom court or by the European Court of Human Rights to be incompatible with the European Convention on Human Rights, then "If a minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility". Such an order is known as a remedial order, and is subject to special procedures set out in Schedule 2 to the Act.

10.33 For non-urgent orders, the minister must first lay a document containing a draft order and an explanation of why it is being made. Parliament and the public have 60 days (not counting prorogation, dissolution, or any adjournment of both Houses for more than four days) to make representations; "representations" explicitly include "any relevant Parliamentary report or resolution". The minister may then lay a second draft order. If there have been representations, a summary of them must be laid; and if the second draft order is different from the first, the changes must be explained. After a second 60-day period, the order must be approved by both Houses, and may then be made.

10.34 If the order is declared to be urgent, it may be made before being laid. It is then laid, with an explanatory document. There follow 60 days for representations, counted from the date of making the order. If representations are made, the minister must lay a summary; and, if it is intended to amend the original order, a new order may be made and laid, with an explanation. Both Houses must then approve the original or replacement order within 120 days of the making of the original order; otherwise the orders lapse.

10.35 The Joint Committee on Human Rights is charged to consider remedial orders, and to perform for such orders the functions otherwise carried out by the Joint Committee on Statutory Instruments. Under Standing Order 72, no motion to approve such an order may be moved until the committee's report has been laid before the House. In the case of a draft order, the committee must report within 60 days of the laying of the draft. In the case of an urgent order, the committee must report within 119 days of the making of the original order.[450]

Hybrid instruments

10.36 The House of Lords alone has a procedure for considering hybrid instruments.

10.37 When the Chairman of Committees is of the opinion that an affirmative instrument[451] is such that, apart from the provisions of the Act authorising it to be made, it would require to be enacted by a private or hybrid bill, he reports his opinion to the House and to the minister or other person responsible for the instrument. An instrument upon which such a Chairman's report has been made is known as a hybrid instrument. Such instruments can be opposed in the House of Lords by petitioning against them.[452]

10.38 Any petition asking the House not to affirm a hybrid instrument must be deposited with the Clerk of the Parliaments within fourteen days following the day on which the Chairman's report is laid before the House. If no petition is received within this period the Chairman reports accordingly to the House. Any petition received during the period is referred to the Hybrid Instruments Committee (see paragraph 11.61) together with the instrument petitioned against.

10.39 The Hybrid Instruments Committee, after considering any representations made in writing by the parties to the proceedings and after hearing, if it thinks fit, the parties in person or by counsel or agents, decides whether any petitioner has a locus standi. If so, the committee reports to the House, in accordance with the criteria specified in private business SO 216, whether there ought to be a further inquiry by a select committee into all or any of the matters specified by the petitioner. In such a case, the House may refer all or any of the matters on which the committee has reported to a select committee consisting of five members, appointed by the House on the proposal of the Committee of Selection, with terms of reference specified by the House.

10.40 No motion to approve a hybrid instrument may be moved until the proceedings under private business SO 216 have been completed,[453] that is until either:

(a) the Chairman of Committees has reported to the House that no petitions have been received, or that all petitions have been withdrawn; or

(b) the Hybrid Instruments Committee has reported that no petitioner has a locus standi, or that there ought not to be an inquiry by a select committee; or

(d) the select committee has reported to the House.

10.41 Where proceedings under private business SO 216 have not been completed in respect of an instrument which has expired or lapsed, a further instrument to substantially the same effect may be substituted for the purposes of those proceedings.

EXPEDITED HYBRID INSTRUMENTS

10.42 A hybrid instrument which, by virtue of the Act authorising it to be made, is, after the expiry of a period prescribed by that Act, to proceed in Parliament as if its provisions would, apart from that Act, require to be enacted by a public bill that is not hybrid, is known as an expedited hybrid instrument.[454] The procedure for such an instrument differs from that applicable to other hybrid instruments in several respects. A petition not to affirm an expedited hybrid instrument must be deposited within ten days following the day on which the instrument is laid. If the Hybrid Instruments Committee is of the opinion that there ought to be a further inquiry, it conducts that inquiry itself forthwith.

10.43 No motion to approve an expedited hybrid instrument may be moved until the proceedings under private business SO 216A have been completed, that is until the Chairman of Committees or the Hybrid Instruments Committee has reported, or the period prescribed by the parent Act has expired.

Special procedure orders

10.44 The procedure for special procedure orders is laid down by the Statutory Orders (Special Procedure) Act 1945, as amended by the Statutory Orders (Special Procedure) Act 1965, supplemented by the private business standing orders of both Houses. That Act applies:

· to orders made under Acts passed before the Act of 1945 which are specified in that Act, or to orders made under it;[455] and

· to orders made under Acts passed since the Act of 1945 which are expressed in those Acts to be "subject to special parliamentary procedure".[456]

LAYING OF ORDERS

10.45 An order subject to special parliamentary procedure must be laid before Parliament.[457] No order may be laid until the requirements[458] of the enabling Act, or of Schedule 1 to the 1945 Act, as to notices, consideration of objections and holding of inquiries have been complied with; and notice must be published in The London Gazette not less than three days before the order is laid. There must be laid with it a certificate by the minister specifying the requirements of the enabling Act and certifying that they have been complied with or (so far as the 1945 Act permits) dispensed with.

PETITIONS

10.46 Petitions[459] may be presented against a special procedure order within a period of 21 days, known as the "petitioning period", beginning with the day on which the order is laid before Parliament or, if the order is laid before the two Houses on different days, with the later of the two days. If the petitioning period expires on a Sunday, it is extended to the following Monday; if it expires during a dissolution, prorogation or any period of 10 or more consecutive days on which the House does not sit for public business, it is extended to the day on which the House resumes.

10.47 There are two kinds of petition against a special procedure order:

· a petition calling for amendments to the order, which must specify the proposed amendments (a "petition for amendment");

· a general petition against the order, which must be presented separately (a "petition of general objection.").

10.48 Memorials[460] stating technical objections to petitions may be deposited in the office of the Clerk of the Parliaments within seven days beginning with the day on which the petition was presented.

10.49 After the petitioning period has expired, the Chairman of Committees and the Chairman of Ways and Means in the House of Commons consider all petitions and report to both Houses. If a petition complies with the Act and standing orders, they certify that it is proper to be received and whether it is a petition for amendment or a petition of general objection. If a petition for amendment[461] involves amendments which would alter the scope of the order or affect the interests of persons other than the petitioner, the Chairmen may make a special report to that effect. If a petition for amendment involves amendments "which would constitute a negative of the main purpose of the order", the Chairmen certify it as a petition of general objection. But if only some of the amendments would defeat the main purpose of the order, the Chairmen may delete those amendments and certify the rest of the petition as a petition for amendment. In certain cases the Chairmen may find it necessary to hear the parties.

10.50 Within 14 days,[462] beginning with the day on which the Chairmen's report is laid before Parliament, counter-petitions may be presented against petitions for amendment.

RESOLUTION FOR ANNULMENT

10.51 If either House within 21 days[463] beginning with the day on which the Chairmen's report on an order is laid before it (the "resolution period") resolves that the order be annulled, the order lapses. In reckoning the resolution period, time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days, is not counted.

10.52 If there is an equality of votes on a resolution for annulment, the resolution is defeated and the order proceeds.

10.53 If no resolution for annulment is passed, any certified petition is referred to a joint committee, except that a petition of general objection is not referred if either House has resolved within the resolution period that it should not be. Any special report of the two Chairmen, and any counter-petitions, are also referred to the committee.

10.54 If no petition is referred to a joint committee at the end of the resolution period, and no resolution for annulment has been passed, the order may come into operation.

JOINT COMMITTEE

10.55 Joint committees under the 1945 Act consist of three members of each House, and private business SO 209 governs their proceedings. Where a petition is for amendment,[464] the committee may report the order with or without amendments to give effect to the petition in whole or in part. Where the petition is of general objection, the committee may report the order with or without amendments, or report that the order be not approved. The report of the joint committee is laid before both Houses. Where the order is reported without amendment,[465] it may come into operation from the date when the report of the committee is laid before Parliament.

10.56 Where the order is reported with amendments,[466] the minister may bring the order as amended into operation on a date of his choice, or withdraw the order, or bring it to Parliament for further consideration by means of a bill for its confirmation.

10.57 Where the committee reports that the order be not approved, the order does not take effect unless confirmed by Act of Parliament.

CONFIRMING BILLS

10.58 A confirming bill presented in respect of an order reported with amendments is a public bill and sets out the order as amended.[467] It is treated as if the amendments had been made in committee in the House in which it is presented, and in the second House likewise it proceeds straight to consideration on report.[468] A bill presented in respect of an order which the committee has reported be not approved goes through the same procedure, unless a petition for amendment was certified but was not dealt with by the joint committee. In that case the confirming bill has a first and second reading, and is referred to that committee for the purpose of considering that petition. Report and third reading follow. In the second House the bill proceeds straight to consideration on report.

ORDERS RELATING TO SCOTLAND[469]

10.59 In the case of orders which do not deal with matters within the legislative competence of the Scottish Parliament but which relate exclusively to Scotland, a preliminary inquiry into objections is held in Scotland by Commissioners in accordance with the Private Legislation Procedure (Scotland) Act 1936. If the minister concerned accepts the Commissioners' recommendations, the order is laid before Parliament and the subsequent proceedings are as already described, except that no petition, whether for amendment or of general objection, is referred to a joint committee unless either House so orders within the resolution period. If the minister is not prepared to accept the Commissioners' recommendations, he may, instead of laying the order before Parliament, introduce a bill for the confirmation of the order. The procedure on such a bill is the same as for a bill under section 9 of the 1936 Act.

Northern Ireland Assembly legislation[470]

10.60 The Northern Ireland Assembly legislates on transferred or devolved matters, and the United Kingdom Parliament has no part to play in the enactment of such legislation. However, certain matters such as taxation and international relations are excepted or reserved for legislation by the United Kingdom Parliament. The Northern Ireland Assembly can legislate on excepted and reserved matters with the consent of the Secretary of State.

10.61 In such circumstances, section 15 of the Northern Ireland Act 1998 provides that the Secretary of State may not submit for Royal Assent a bill of the Northern Ireland Assembly touching on an excepted or reserved matter unless he has laid the bill before the United Kingdom Parliament. In an urgent case, the Secretary of State may submit the bill for immediate Royal Assent; but he must then lay the Act before both Houses at Westminster. Either way, when such a bill or Act has been laid at Westminster, each House has 20 sitting days within which a motion to oppose the bill or Act may be tabled.

10.62 Under the Act, any such motion must be signed by at least 20 members of the House. The usual rules of the House on adding names to motions (see paragraph 6.47) are dispensed with for these motions on Northern Ireland Assembly legislation.

10.63 Procedure on these motions is as follows:

· when a Northern Ireland Assembly bill or Act is laid before the House, its arrival is recorded in the Minutes of Proceedings, and in a table in the legislation section of House of Lords Business entitled "Northern Ireland Assembly Legislation on Reserved/Excepted Matters in Progress". This table shows the expiry date of the 20-day statutory period. If 20 sitting days pass and no motion is put down, the House's involvement is at an end;

· if within the 20 days a member of the House tables a motion to oppose the bill or Act, the motion is printed in House of Lords Business;

· signatures to the motion may be added in the Table Office or the Public Bill Office;

· signatories to the motion are listed in House of Lords Business. If further members of the House add their names, they are added to the list. Once 20 have signed, the list is replaced with a total number;

· a signature is required, either on a copy of the motion, or on a note clearly indicating the Lord's wish to be associated with the motion. Fax, e-mail and telephone are not acceptable;

· the master copy of the motion, with a consolidated list of signatures, is kept in the Table Office, and is open for inspection;

· a Lord may withdraw his signature at any time, by giving written authority;

· if, on the 20th day, the number of signatories has not reached 20, the motion is ineffective. If it has reached 20, the motion may be put down for a day and debated in the usual way. When the motion is put down for a day, only the name of the person who originally tabled the motion appears on the order paper as the person who is to move the motion. The total number of signatures which the motion has attracted is indicated with the text of the motion.

EUROPEAN UNION LEGISLATION[471]

CHALLENGING EU LEGISLATION ON GROUNDS OF SUBSIDIARITY

10.64 The work of the European Union Committee is summarised below (see paragraph 11.52). In addition to the normal scrutiny work of the Committee, the House itself possesses certain powers in respect of proposed or recently adopted European legislation, by virtue of amendments to the Protocol on the application of the principles of subsidiarity and proportionality ("the Protocol") which came into force on 1 December 2009:

· The House may challenge draft European Union proposals on the grounds of subsidiarity, by adopting a "reasoned opinion" to that effect within eight weeks of the proposal's transmission to national parliaments. Any such reasoned opinion is then forwarded to the Presidents of the European Union institutions; if enough opinions are submitted by national parliaments or chambers of national parliaments, the institutions are required to respond in the terms set out in the Protocol.

· The House may, within two months and ten days of the adoption of a European Union legislative act, agree a resolution to the effect that the act breaches the principle of subsidiarity, and calling upon the Government to bring an action on these grounds before the European Court of Justice. The Government has made a commitment, in the event of such a resolution being passed, to bring such an action on behalf of the House.

10.65 In either case, it is normal practice that the House's consideration of such a resolution would follow the publication of a report by the European Union Committee, and that the Committee's report and the resolution would be debated together. However, it would remain open to any Member to table a free-standing motion for resolution, containing a short, self-contained "reasoned opinion", as required by the Protocol.

10.66 The Government have made a commitment that they will not support a proposal in the Council of Ministers which has been the subject of a reasoned opinion from either House without first communicating to Parliament their reasons for doing so.

"PASSERELLE" CLAUSES

10.67 A "passerelle" clause is a European treaty provision which allows the Members States of the European Union to decide, by unanimity, to change the way in which decisions are taken within a specified policy area—for instance, to move from a requirement for unanimity to qualified majority voting.

10.68 Under section 6 of the European Union (Amendment) Act 2008, the approval of both Houses is required before the Government may support the use of one of the passerelle clauses. Under the Act, approval is only given if "each House agrees to the motion without amendment".

10.69 If any Member intends to oppose a Government motion seeking such approval, he should give notice by tabling an amendment in the following form: "Lord [name] to move, as an amendment to the above motion, to leave out 'approve' and insert 'declines to approve'". No other type of amendment is admissible.

SCRUTINY OF UNITED KINGDOM "OPT-INS"

10.70 During passage of the European Union (Amendment) Act 2008, the Government gave an undertaking[472] that they would take account of the views of the EU Committees of the two Houses before exercising their right, under the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to notify the Council of Ministers of their decision to take part in the adoption and application of proposals within that area. Without the exercise of such an "opt-in" such proposals are not binding upon the United Kingdom.

10.71 The Government's undertaking applies only if the views of the EU Committee are forthcoming within eight weeks of publication of the proposal. If, within this time-limit, the EU Committee makes a report to the House on the proposal, recommending the report for debate, the Government will seek to arrange a debate through the Usual Channels. The debate takes place on a motion, tabled in the name of either the Chairman or a Member of the Committee, that the House agrees the recommendation of the Committee that the Government should or, as the case may be, should not exercise their right to opt in to the proposal. The motion is amendable and may be divided upon.

NATIONAL POLICY STATEMENTS

10.72 National policy statements (NPSs) set out national policy on particular types of development. Under Section 9(2) of the Planning Act 2008, each proposal for a NPS must be laid before Parliament. In so doing, the Secretary of State specifies a relevant period for parliamentary scrutiny. If, during this scrutiny period, either House passes a resolution with regard to the proposal, or a committee of either House makes recommendations regarding the proposal, the Secretary of State must lay before Parliament a statement setting out his response to the resolution or recommendations. Following completion of parliamentary scrutiny, the Secretary of State may formally designate the proposal as a NPS. The final NPS is also laid before Parliament.[473]

10.73 In the House of Lords, NPSs are normally debated in Grand Committee, for up to four hours. However, this does not restrict the freedom of committees of the House or of individual Members to make use of the statutory procedures outlined above. In the event of a motion for resolution being tabled, the Usual Channels have undertaken to provide time for a debate in the Chamber within the scrutiny period.[474]

SCRUTINY OF TREATIES[475]

10.74 No treaty[476] may be ratified unless the minister responsible has:

· laid a copy before Parliament;

· published it; and

· allowed a period of 21 sitting days (beginning with the day after that on which the treaty was laid) during which either House may resolve that the Treaty should not be ratified.

10.75 The minister may extend the scrutiny period by up to 21 sitting days by publishing and laying before Parliament a statement to that effect before the original period expires; this can be done more than once.

10.76 If the Lords pass a resolution within the 21 sitting days (or within the extended scrutiny period) that the treaty should not be ratified, the Government can only proceed with ratification after they have laid a statement before Parliament explaining why the minister believes the treaty should nevertheless be ratified.

10.77 These requirements do not apply if the minister is of the opinion that, exceptionally, the treaty should be ratified without their being met. In such a case, either before or as soon as practicable after the treaty has been ratified, it must be published and laid before Parliament by the minister, along with a statement explaining why the treaty is being ratified outside this process.

10.78 In laying a treaty before Parliament, the minister shall accompany the treaty with an explanatory memorandum explaining the provisions of the treaty, the reasons for seeking its ratification, and such other matters as the minister considers appropriate.

10.79 For the purposes of these provisions, a sitting day is a day when both Houses are sitting.

429 Except in the very small number of cases where the parent act specifically provides for such amendment, e.g. Census Act 1920 s. 1(2), Civil Contingencies Act 2004 s. 27(3). Back

430 The last three instances of the rejection of an affirmative instrument were 18 June 1968: Southern Rhodesia (United Nations Sanctions) Order 1968; 22 February 2000: Greater London Authority (Election Expenses) Order 2000; and 28 March 2007: Gambling (Geographical Distribution of Casino Premises Licences) Order 2007. A motion for an address praying against a negative instrument (Greater London Authority Elections Rules 2000) was agreed to on 22 February 2000. Back

431 LJ (1993-94) 683, HL Deb. 20 October 1994 cols 356-83. Back

432 Procedure 3rd Rpt 2003-04, 1st Rpt 2008-09. Back

433 The Statutory Instruments Act 1946 defines the main categories of statutory instrument. Other kinds of delegated legislation include codes of practice and conduct. Back

434 SO 72. Back

435 See Acquisition of Land Act 1981, s. 19(1). Back

436 These are primarily financial instruments. The rest of this paragraph refers to both Houses but it must be remembered that some instruments need only be laid before and approved by the House of Commons. Back

437 In some cases one or both Houses must present Addresses to the Crown praying that the Order be made. Back

438 Stated in the parent Act and usually 28 days in duration. Back

439 SO 72. The House has agreed from time to time to dispense with the standing order, e.g. 1 & 14 July 1999. Back