Companion to the Standing Orders and Guide to the Proceedings of the House of Lords - 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.[1] The House of Lords has only occasionally rejected delegated legislation.[2] The House has resolved "That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".[3] Delegated legislation may be debated in Grand Committee, but must return to the floor of the House if a formal decision is required.[4]

TYPES OF DELEGATED LEGISLATION

10.03  Delegated legislation that comes before the House consists mostly of statutory instruments.[5] 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[6] 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.[7]

10.05  There are also certain "super-affirmative" procedures, which give Parliament an opportunity to exercise a greater scrutiny role than it may exercise in respect of affirmative instruments. Examples include certain legislative reform orders (paragraphs 10.26-10.30) public bodies orders (paragraphs 10.31-10.33) and human rights remedial orders (paragraphs 10.22-10.25).

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 9.65-9.72);
  • special procedure orders (which are required where certain protected categories of land, such as open space land,[8] are subject to compulsory purchase. These orders are subject to private business procedures: see paragraphs 9.73-9.88).

SCRUTINY OF DELEGATED POWERS AND DELEGATED LEGISLATION

10.07  The Delegated Powers and Regulatory Reform Committee examines the way in which bills delegate legislative power, and also scrutinises legislative reform and similar orders (see paragraphs 11.49-11.51). The Secondary Legislation Scrutiny Committee scrutinises and reports on delegated legislation, including public bodies orders (see paragraph 11.58). The Joint Committee on Statutory Instruments considers and reports on technical and legal aspects of delegated legislation (see paragraph 11.59). The Joint Committee on Human Rights examines proposed remedial orders (see paragraphs 10.22-10.25).

NEGATIVE INSTRUMENTS

10.08  Negative procedure is the most common form of parliamentary control over delegated legislation. Most negative instruments take effect on a specified future date, but some may come into effect on the date they are laid. Both negative instruments and draft negative instruments are subject to annulment in pursuance of a resolution of either House adopted within a specified time limit.

AMENDMENTS AND MOTIONS RELATING TO NEGATIVE INSTRUMENTS

10.09  Opposition to or concern about a negative instrument may be expressed in various ways; and a negative instrument may also be debated on a neutral motion.

  • 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.[9] The reason for seeking to annul the instrument may be given, by means of the addition of the words "on the grounds that" etc.[10] 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 negative instrument. Swearing-in days in either House[11] 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.
  • 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.
  • A negative instrument may be debated on a neutral "take note" motion, either in Grand Committee or in the House.

NEGATIVE INSTRUMENTS IN GRAND COMMITTEE

10.10  Where a neutral 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.[12]

AFFIRMATIVE INSTRUMENTS

10.11  Affirmative instruments require the express approval of Parliament, or sometimes of the Commons only.[13] The affirmative procedure takes one of two forms, depending on the parent Act:

  • A draft affirmative instrument is an instrument that is 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 (this is by far the most common form);[14]
  • A made affirmative instrument is an instrument that is made before being laid before Parliament and which requires both Houses to agree to the appropriate resolutions approving the instrument either (a) before it may come into force, or (b) if already in force, to enable it to remain in force beyond a specified period.[15] The latter is less common.

10.12  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.[16] Special considerations apply to certain categories of affirmative instrument, such as those laid under section 17 of the Legislative and Regulatory Reform Act 2006 and hybrid instruments (see SO 72 and paragraphs 10.26-10.30 and 9.65-9.72).

10.13  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 or her behalf.

AMENDMENTS AND MOTIONS RELATING TO AFFIRMATIVE INSTRUMENTS

10.14  Opposition to or concern about an affirmative instrument may be expressed in a number of ways (in addition to speaking in the debate in Grand Committee or 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.

10.15  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.[17]

MOVING AFFIRMATIVE INSTRUMENTS EN BLOC

10.16  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.[18] 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.[19] Notice of a motion to take instruments en bloc is given by means of an italic note in House of Lords Business reminding members of their right to object to taking the instruments en bloc.

AFFIRMATIVE INSTRUMENTS IN GRAND COMMITTEE

10.17  Affirmative instruments may be considered in Grand Committee. No referral motion is required. After the debate has been held in Grand Committee each instrument is approved by the House on a separate motion.

10.18  Motions to approve affirmative instruments after they have been debated in Grand Committee are normally taken en bloc in the House. The requirement for the unanimous leave of the House applies as for other en bloc motions.[20]

ORDERS SUBJECT TO SUPER-AFFIRMATIVE AND OTHER STRENGTHENED SCRUTINY PROCEDURES

10.19  Certain parent Acts contain provision for procedures that make orders subject to a form of parliamentary procedure more rigorous than that provided by the affirmative procedure. The most commonly used are procedures under the Human Rights Act 1998, the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011.[21]

10.20  The parent Act sets out the precise scrutiny procedure, which varies in each case, though they share some or all of the following characteristics:

  • A requirement for the government to consult before laying a draft order or draft proposal before Parliament;
  • A requirement to lay supporting documents with the draft order;
  • Power for a designated scrutiny committee in each House to determine the level of parliamentary scrutiny the draft order is subject to;
  • Power for the designated scrutiny committee to recommend the draft order be not proceeded with;
  • A requirement for the minister to consider or take account of recommendations made by the relevant committee, or resolutions made by either House.[22]

10.21  The scrutiny procedures that apply under the various Acts are described in more detail in the following paragraphs.

REMEDIAL ORDERS

10.22  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.

10.23  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.

10.24  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.

10.25  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.[23]

LEGISLATIVE REFORM ORDERS

10.26  The Legislative and Regulatory Reform Act 2006 gives ministers wide-ranging powers to amend primary legislation by order so as to remove or reduce burdens (section 1) or to promote regulatory principles (section 2). The key components of the statutory scrutiny procedure are: (a) the minister recommends which scrutiny procedure should apply to the draft order (negative, affirmative or super-affirmative), though that recommendation is subject to a decision of either House to upgrade the scrutiny procedure; (b) either House may propose amendments to the draft order; and (c) either House may veto the instrument.

10.27  In summary the procedure is as follows:

  • A minister wishing to make an order under the Act must first consult on his or her proposals;
  • The minister must lay a draft order before both Houses, with an explanatory document recommending which procedure should apply: negative resolution; affirmative resolution; or super-affirmative resolution (see paragraph 10.30);
  • Within 30 days of the date the draft order is laid, either House may require that another procedure should apply—requiring either that that a draft order laid as a negative instrument be treated as an affirmative instrument or a super-affirmative instrument, or that a draft order laid as an affirmative instrument be treated as a super-affirmative instrument.
  • The procedure to which the draft order is subject may be changed in one of two ways. Either (i) the designated scrutiny committee in one or other House recommends another procedure, and this becomes the requirement unless, within the 30-day period, a contrary resolution is passed by the relevant House; or (ii) one or other House resolves that another procedure should apply.

10.28  In addition to the statutory scrutiny requirements, in 2006 the government gave an undertaking that the legislative reform order (LRO) procedure would not be used for highly controversial changes, and that an LRO proposal would not be pursued in the face of opposition from the designated scrutiny committee in either House.[24]

10.29  In the House of Lords, the Delegated Powers and Regulatory Reform Committee is the designated scrutiny committee in respect of LROs.

10.30  The three procedures set out in the 2006 Act are as follows:

  • Negative procedure (section 16): the minister may make the order unless, within 40 days from the date the draft order was laid, either House resolves otherwise, or the designated scrutiny committee of either House recommends otherwise (and that recommendation is not rejected by the relevant House in the same session);
  • Affirmative procedure (section 17): the minister may make the order if, after the expiry of 40 days from the date the draft order was laid, both Houses resolve to approve the draft. If, however, the designated scrutiny committee of either House recommends within the 40-day period that the order should not proceed, it may not proceed unless that recommendation is rejected by resolution in the same Session;
  • Super-affirmative procedure (section 18): the draft order is laid before both Houses for 60 days, during which time either House may make resolutions, and the designated scrutiny committee of each House may make recommendations. The minister must have regard to any resolutions or recommendations, or any other representations made during the 60 days. After the 60-day period, the minister may decide either to proceed with the draft order without amendment or lay a revised draft which is subject to the normal affirmative procedure. In either case, the minister must lay before Parliament a statement about any representations received. Between the laying of the statement (or the revised draft and the statement) and the approval of the draft, the designated scrutiny committee of either House may recommend that the order should not proceed, in which case it may not then proceed unless the relevant House rejects the recommendation, by resolution, in the same session.

PUBLIC BODIES ORDERS

10.31  Schedules 1 to 5 of the Public Bodies Act 2011 list a number of public bodies. Under the Act ministers may make orders, with a view to "improving the exercise of public services", and subject to certain conditions (section 8), to abolish listed bodies (section 1), merge them (section 2), modify their constitutional arrangements (section 3), modify their funding arrangements (section 4), or modify or transfer their functions (section 5).

10.32  Public bodies orders are subject to an enhanced scrutiny procedure, as follows:

  • A minister wishing to make an order under the Act must first consult on his proposals;
  • A draft order is laid before both Houses with an explanatory document setting out the reasons for the draft order and why the minister considers the section 8 requirements have been met;
  • Unless either House, or a committee of either House, resolves otherwise, the draft order is subject to a 40-day scrutiny period from the date on which the draft order was laid, after which the draft order may be approved by a resolution of both Houses.
  • Within 30 days from the date the draft order was laid, the designated scrutiny committee of either House can recommend that the order should be subject to an enhanced 60-day scrutiny period, and this recommendation applies unless the relevant House resolves to the contrary.
  • The minister must have regard to any representations, resolutions of either House or recommendations of the designated scrutiny committee of either House made during the 60-day scrutiny period.
  • After the expiry of the 60 days, the draft order may be approved by a resolution of both Houses; or the minister may make material changes and lay a revised draft order, together with a summary of the changes, before both Houses. Any revised draft order requires the approval by resolution of both Houses.

10.33  In the House of Lords, the Secondary Legislation Scrutiny Committee is the designated scrutiny committee for draft orders and revised draft orders laid under the Public Bodies Act 2011.

OTHER STRENGTHENED SCRUTINY PROCEDURES[25]

LOCAL GOVERNMENT ACT 1999

10.34  Section 16 of the Local Government Act 1999 enables the Secretary of State, by order, to modify or exclude the application of any enactment which he or she thinks prevents or obstructs compliance by "best value authorities" with the principles of best value, in particular the duty "to secure continuous improvement" in the way they exercise their functions (section 3). Such orders may also confer new powers on authorities to permit or facilitate such compliance. In summary the procedure for the scrutiny of these orders is as follows:

  • The Secretary of State must consult before making an order;
  • He or she must lay before Parliament a document explaining the proposals, and in particular setting out the proposed draft order and giving details of the consultation;
  • There is a scrutiny period of 60 days from the date the document is laid, and the Secretary of State must consider any representations made during this period;
  • At the expiry of the 60 days, the Secretary of State may lay before Parliament a draft order for approval, accompanied by a statement giving details of any representations received and any changes made to the original proposal laid before Parliament.

10.35  Orders under the Local Government Act 1999 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

LOCAL GOVERNMENT ACT 2000

10.36  Sections 5 and 6 of the Local Government Act 2000 enable the Secretary of State to amend, repeal, revoke or disapply any enactment which he or she thinks prevents or obstructs local authorities from exercising their power under section 2(1) to promote well-being, or which requires a local authority to prepare, produce or publish any plan or strategy relating to any particular matter. The procedure for the scrutiny of these orders, set out in section 9 of the Act, is similar to that for orders made under section 16 of the Local Government Act 1999 (paragraph 10.34). These orders are scrutinised by the Delegated Powers and Regulatory Reform Committee.

LOCAL GOVERNMENT ACT 2003

10.37  Section 97 of the Local Government Act 2003 enables the Secretary of State to amend, repeal, revoke or disapply enactments which either (a) he or she considers prevent or obstruct "best value authorities" (see paragraph 10.34) charging for the provision of discretionary services, or doing for a commercial purpose anything which they are authorised to do as part of their ordinary functions, or (b) make provision for or in connection with such charging. The procedure for the scrutiny of these orders is similar to that for orders made under section 16 of the Local Government Act 1999 (paragraph 10.34). These orders are scrutinised by the Delegated Powers and Regulatory Reform Committee.

FIRE AND RESCUE SERVICES ACT 2006

10.38  Section 5C(1) and (2) of the Fire and Rescue Services Act 2006 enable the Secretary of State to amend, repeal, revoke or disapply any provision which he or she thinks either (a) prevents or restricts fire and rescue authorities from exercising any power conferred by section 5A(1) to do, for a commercial purpose or otherwise, things that are incidental to or connected with their functions, or (b) overlaps any such power. The procedure for scrutiny of such orders is the same as for LROs (paragraphs 10.26-10.30), except that the ministerial undertakings given in respect of LROs do not extend to the use of these orders.

10.39  Orders under the Fire and Rescue Services Act 2006 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

LOCAL TRANSPORT ACT 2008

10.40  Section 101 of the Local Transport Act 2008 enables the Secretary of State, by order, to amend, repeal, revoke or disapply any enactment he or she thinks prevents or obstructs "Integrated Transport Authorities" from exercising their power under section 99(1) to promote economic, social or environmental well-being in their areas. The procedure for the scrutiny of these orders is similar to that for orders made under section 16 of the Local Government Act 1999 (paragraph 10.34). These orders are scrutinised by the Delegated Powers and Regulatory Reform Committee.

NORTHERN IRELAND ACT 1998

10.41  Section 85 of the Northern Ireland Act 1998 provides that Her Majesty may, by Order in Council, make provision about certain of the "reserved matters" specified in Schedule 3 to the Act. In summary, the procedure for the scrutiny of these orders is as follows:

  • Before any recommendation can be made to Her Majesty to make an Order in Council under section 85, a draft order must be laid and approved by resolution of both Houses;
  • Before any draft order is laid before Parliament, the Secretary of State must lay before Parliament a document containing a draft of the proposed order and refer the document to the Northern Ireland Assembly for consideration;
  • There is a scrutiny period of 60 days from the date the document is laid before Parliament;
  • After the expiry of the 60-day period the Secretary of State can lay a draft order together with a statement (i) summarising any representations made during the 60-day scrutiny period, (ii) containing any report made to the Secretary of State by the Northern Ireland Assembly, and (iii) giving details of any changes made to the proposed order as a result of representations made. The term "representations" includes resolutions of either House or the Assembly or a relevant report or resolution of any committee of either House or the Assembly.

10.42  This scrutiny procedure does not apply if, by reason of urgency, the order is required to be made without a draft having been considered and approved as set out above. In this case, the Order in Council is laid before Parliament after having been made and ceases to have effect after 40 days, unless within that period it has been approved by resolution of both Houses.

10.43  Orders under the Northern Ireland Act 1998 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

LOCALISM ACT 2011

10.44  Under section 5 of the Localism Act 2011, the Secretary of State may by order amend, repeal, revoke or disapply a statutory provision which he or she thinks prevents a local authority from exercising its "general power of competence" (conferred by section 1 of the Act), or which he thinks overlaps that general power. The procedure for scrutiny of such orders is the same as for LROs (paragraph 10.26-10.30), except that the Ministerial undertakings given in respect of LROs do not extend to the use of these orders. Orders under section 5 of the Localism Act 2011 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

10.45  Under section 15 of the Localism Act, the Secretary of State may by order apply, extend, disapply, amend, repeal or revoke any enactment in order either to transfer a local public function from the public authority whose function it is to a "permitted authority", or to make provision about the discharge of functions which have already been transferred. The procedure for scrutiny of such orders is based on that for LROs except that (a) the level of scrutiny is specified in section 19 of the Act, and there is no power for either House or the designated scrutiny committee in either House to change the scrutiny arrangements, and (b) the Ministerial undertakings given in respect of LROs do not extend to the use of these orders.

10.46  Orders under section 15 of the Localism Act 2011 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

NORTHERN IRELAND ASSEMBLY LEGISLATION[26]

10.47  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.

10.48  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.

10.49  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 6.50) are dispensed with for these motions on Northern Ireland Assembly legislation.

10.50  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 Legislation 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;
  • Members may withdraw their signatures 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[27]

CHALLENGING EU LEGISLATION ON GROUNDS OF SUBSIDIARITY

10.51  The work of the European Union Committee is summarised below (see paragraph 11.53). 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 call upon the government to bring an action on these grounds before the European Court of Justice. The government have made a commitment, in the event of such a resolution being passed, to bring such an action on behalf of the House.

10.52  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.

10.53  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.

EUROPEAN UNION ACT 2011

10.54   Under the European Union Act 2011, the United Kingdom will not agree any change to the European Union treaties without prior approval by Act of Parliament. Certain types of treaty change (broadly speaking, those which would move a power or area of policy from the UK to the EU level) would also require approval in a referendum.The European Union Act 2011 also specifies certain other categories of proposals which may be made under the EU treaties, which would require each House of Parliament to approve a motion agreeing the proposal; or which would require approval by Act of Parliament; or which would require approval by Act of Parliament and a referendum.

SCRUTINY OF UNITED KINGDOM "OPT-INS"

10.55  During passage of the European Union (Amendment) Act 2008, the government gave an undertaking[28] 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.

10.56  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

10.57  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 or her response to the resolution or recommendations. The proposal is then laid before Parliament again, and is subject to approval by resolution of the House of Commons before being formally designated as a NPS. The final NPS is also laid before Parliament.[29]

10.58  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.[30]

SCRUTINY OF TREATIES[31]

10.59  No treaty[32] 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.

10.60  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.

10.61  If the House of 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.

10.62  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.

10.63  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.

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



1   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

2   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

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

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

5   The Statutory Instruments Act 1946 defines the main categories of statutory instrument.  Back

6   SO 72. Back

7   Codes of practice and protocols may also be delegated legislation, though in most cases they are not legally binding, and are described as "quasi-legislation". Back

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

9   The procedure is set out in the Statutory Instruments Act 1946. Back

10   Procedure 6th Rpt 2010-12. Back

11   See paragraph 2.01. Back

12   Procedure 1st Rpt 2008-09. While debates on neutral "take note" motions on negative instruments are deemed suitable for consideration in Grand Committee, they may also be debated in the Chamber. Back

13   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

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

15   Stated in the parent Act and usually 28 or 40 days in duration. Back

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

17   Procedure 1st Rpt 1990-91. Back

18   Procedure 2nd Rpt 1970-71. Back

19   Procedure 3rd Rpt 1971-72. Back

20   Procedure 1st Rpt 2005-06. Back

21   Other similar procedures are found in the Northern Ireland Act 1998 (s 85), the Local Government Act 1999 (s 17), the Local Government Act 2000 (s 9), the Local Government Act 2003 (s 98), the Fire and Rescue Services Act 2006 (s 5E), the Local Transport Act 2008 (s 102), and the Localism Act 2011 (s 7 and s 19). See paragraphs 10.34-10.46. Back

22   See Delegated Powers and Regulatory Reform Committee, 3rd Report, 2012-13 (HL Paper 19).  Back

23   Procedure 3rd Rpt 1999-2000. Back

24   HC Deb. 9 February 2006 col. 1058-1059. Back

25   A fuller account of these procedures is given in the Delegated Powers and Regulatory Reform Committee, 3rd Rpt, 2012-13. Back

26   Procedure 4th Rpt 1999-2000.  Back

27   Procedure 2nd Rpt 2009-10. Back

28   9 June 2008. See European Union Committee 2nd Report 2008-09, appendix 1. Back

29   Planning Act 2008 s. 9 and s. 5, as amended by the Localism Act 2011, s. 130.  Back

30   Procedure 2nd Rpt 2008-09. A similar procedure was applied to the Marine Policy Statement (Procedure 3rd Rpt 2010-12). Back

31   See Constitutional Reform and Governance Act 2010, ss 20-25. Back

32   This procedure does not apply to (i) treaties covered by the European Union Act 2011, or amendments to the Euratom Treaty; (ii) double taxation conventions and arrangements and international tax enforcement arrangements; and (iii) treaties concluded under authority given by the UK Government by any of the Channel Islands, the Isle of Man or any of the Overseas Territories. Back


 
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