95.Schedule 7 sets out the parliamentary scrutiny procedures for regulations made under the Bill:
(a)“draft affirmative” (the regulations are laid in draft and cannot be made unless the draft is approved following debates in both Houses);
(b)“negative” (the regulations are made without a need for any debates, but can subsequently be annulled following an adverse vote in either House);
(c)“made affirmative” (the regulations are made and come into force but cannot remain in force unless approved by both Houses within one month of being made).
96.The “made affirmatives” are for urgent cases.
97.The “draft affirmatives” under clauses 7 to 9 cover a variety of matters:
98.If an exercise of powers does not fall within one of these matters, Ministers have an unfettered discretion to decide whether the affirmative or negative procedure should apply.
99.There is no obvious rationale for the narrow range of matters which must be contained in affirmative regulations under clauses 7 to 9. In the context of regulations under clause 7, the delegated powers memorandum talks of the negative procedure being used for those areas that are “principally mechanistic”. This is vague, as was the same language in the White Paper, and in our view raises the question whether the list of matters which automatically require the affirmative procedure has been appropriately drawn, or whether there are further matters which should be added to the list.
100.Under Schedule 7, the affirmative procedure is required where the regulations provide for any function of an EU body to be exercisable by a newly-established body under clauses 7 to 9. However, where regulations transfer such functions to an existing body the negative procedure can apply. We are not convinced that there are sound reasons for this difference in approach. The issues of how transferred functions should be configured in a UK context, and which body is most appropriate to exercise particular functions, are of equal importance in both cases, and arguably justify the affirmative procedure in both cases.
101.It is suggested in paragraph 47(a) and (b) of the delegated powers memorandum that a higher level of scrutiny is appropriate where functions are transferred to a newly-established body because of the cost implications of setting up the new body. There will be cost implications arising from the transfer of functions (and how those functions are configured) whether it is a new or old body that is given the functions. And in any case that seems to us to be an unduly narrow basis for determining whether the affirmative procedure should apply.
102.The powers in clauses 7(4), 8(2) and 9(2) for regulations to do anything that an Act of Parliament can do involve a significant Henry VIII power. Except in the narrow cases where regulations must be affirmative, the Government are free to exercise these Henry VIII powers under the negative procedure. This is a significant departure from long-established practice whereby the Government have accepted the Committee’s position that powers to amend primary legislation should be made in affirmative instruments save in exceptional cases for which a full justification must be provided.
103.To say that some of the changes will be “mechanistic and minor” does not provide an adequate justification for applying the negative procedure in all cases particularly as these are exceptionally wide-ranging Henry VIII powers.
104.The delegated powers memorandum does not explain why it is Ministers rather than Parliament who should have the final say on the appropriate level of parliamentary scrutiny in those cases where either the affirmative or negative procedure is capable of applying. There are examples in existing legislation where the final decision on the level of scrutiny is given to Parliament: for example, the Legislative and Regulatory Reform Act 2006, the Public Bodies Act 2011 and the Localism Act 2011. A similar mechanism could be included in this Bill, albeit with shorter time-periods in view of the large amount of legislation that has to be in place before exit from the EU.
105.The affirmative procedure should apply to regulations which transfer EU functions to a UK body under clauses 7 to 9, irrespective of whether or not the body is newly established.
106.In the absence of a convincing explanation to the contrary, the affirmative procedure should apply to regulations under clauses 7 to 9 and 17 that amend or repeal primary legislation.
107.Where the Bill currently allows Ministers a choice as to whether the affirmative or negative procedure applies to regulations under clauses 7 to 9 and 17(5), we recommend the following sifting mechanism instead. We also consider that this mechanism should apply to all regulations made under clause 17(1).
(a) Each statutory instrument is laid in draft. The Minister proposes either the affirmative or the negative procedure. Where the Minister proposes the negative procedure, he or she must justify it in writing to Parliament.
(b)Where the Minister proposes the affirmative procedure, that procedure will apply.
(c)Where the Minister proposes the negative procedure, a committee of each House — or a joint committee of both Houses — has 10 sitting days in which to accept the Minister’s proposal or recommend the affirmative procedure. If no recommendation is made in the 10-day period, the statutory instrument will be subject to the negative procedure.
(d)If the responsible committee of either House (or a joint committee) recommends the affirmative procedure, that level of scrutiny applies unless the relevant House resolves to reject the committee’s recommendation within a further period of five sitting days.
(e)Once the relevant periods have expired:
(f)In urgent cases where the Minister considers it necessary for a proposed negative instrument to come into force immediately, the Minister makes the instrument before laying it. The relevant Committee(s) would still have 10 days in which to recommend that the affirmative procedure should apply instead. If it made such a recommendation, which was not rejected by the relevant House, the instrument would cease to remain in force unless approved by both Houses within 40 days of laying. If no recommendation is made, the instrument continues to have effect like any other negative instrument, subject to the usual 40-day praying period.
108.This sifting mechanism strikes a balance between the scrutiny requirements of Parliament and the business needs of Government. So far as the level of applicable scrutiny is concerned, our proposal would allow for every instrument to be judged rapidly on its merits. In our view, it incorporates realistic timeframes that will allow the Government to have a functioning statute book when the UK leaves the EU. Since many of the regulations to be made under the Bill may end up being laid before Parliament towards the end of the negotiation process, it is all the more important that Members of both Houses have an opportunity to sift the purely mechanistic ones from those which they consider deserve fuller scrutiny. The sifting process permits Parliament to make rapid decisions on those regulations which it wants to scrutinise more closely.
37 Para. 3.22.
38 See para. 47 of the delegated powers memorandum.
39 Others have also considered how the two Houses can play a role in determining the scrutiny procedures to be applied to instruments made under the Bill. See, for example, Hansard Society, Taking Back Control for Brexit and Beyond (September 2017).
40 As under the Legislative and Regulatory Reform Act 2006, there is no need for both Houses to agree on the necessary level of scrutiny. A recommendation or resolution from either House is sufficient to increase the level of parliamentary scrutiny. The position is analogous to that under the Statutory Instruments Act 1946, where a successful prayer in either House against a negative procedure statutory instrument is sufficient to lead to its annulment.