18.Ministers have a choice about whether regulations should be subject to the affirmative or the negative scrutiny procedure under the following provisions of the withdrawal Act:
19.These powers are at the very heart of the withdrawal process and, not surprisingly, their exercise is subject to certain restrictions. For regulation-making powers in sections 8 and 9, certain matters are either prohibited from being the subject of regulations altogether or, if not prohibited, must be subject to the affirmative procedure:
(a) impose or increase taxation or fees;
(b) make retrospective provision;
(c)create a “relevant criminal offence”;20
(d) establish a public authority;
(e)be made to implement the withdrawal agreement;
(f)amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation under it; or
(g)amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.21
(a)provide for any function of an EU entity or public authority in a Member State of making an instrument of a legislative character to be exercisable instead by a public authority in the United Kingdom;
(b)relate to a fee in respect of a function exercisable instead by a public authority in the United Kingdom;
(c)create, or widen the scope of, a criminal offence; or,
(d)create or amend a power to legislate.
20.Furthermore, the powers in sections 8, 9 and 23(1) are time-limited because each is subject to a sunset provision.23 Section 8(8) states that that no regulations may be made under that section “after the end of the period of two years beginning with exit day”. For section 9, the deadline is “after exit day” (section 9(4)), and for section 23(1) it is “after the end of the period of ten years beginning with exit day” (section 23(4)).
21.Where regulations laid under sections 8 and 9 do not fall within the exclusions described above, and for all regulations laid under section 23(1), the Minister can choose whether they should be subject to the affirmative or negative procedure. Where the Minister chooses the negative procedure, he or she will lay a proposed negative instrument and this Committee (and the equivalent committee in the House of Commons) will consider whether they agree with the Minister in his or her choice or whether to recommend that the affirmative procedure should apply.24
22.The remainder of this Chapter will set out the factors which the Committee is likely to take into account when considering whether to make such a recommendation.
23.We have noted in paragraph 19 that certain matters are either prohibited from being the subject of regulations made under sections 8 and 9 or, if not prohibited, must be subject to the affirmative procedure. We would not expect any proposed negative instruments to contain material relating to these excluded matters. However, part of our scrutiny will include ensuring that they do not.25
24.In considering possible sifting criteria, our starting point is the Committee’s current grounds for reporting, and we asked in our Call for Evidence whether the sifting criteria should reflect or differ from those grounds.
25.Under our current terms of reference, the Committee is charged with considering whether or not the special attention of the House should be drawn to an instrument on one or more of the following grounds:
(a)that it is politically and legally important or gives rise to issues of public policy likely to be of interest to the House;
(b)that it may be inappropriate in view of changed circumstances since the enactment of the parent Act;
(c)that it may inappropriately implement European Union legislation;
(d)that it may imperfectly achieve its policy objectives;
(e)that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation;
(f)that there appear to be inadequacies in the consultation process which relates to the instrument;
(g)that the instrument appears to deal inappropriately with deficiencies in retained EU law.26
26.We have also borne in mind the findings of the Joint Committee on Delegated Legislation under the chairmanship of Lord Brooke of Cumnor (“the Brooke Committee”) which, in 1973, set out three circumstances where the affirmative procedure would normally be appropriate;27 namely, where a delegation of power:
(1)substantially affects provisions of Acts of Parliament;
(2)imposes or increases taxation or other financial burdens on the subject or raises statutory limits on the amounts which may be borrowed by or lent or granted to public bodies; or,
(3)involves considerations of special importance not falling under the first two heads (for example, powers to create new varieties of criminal offence of a serious nature).
27.The third Brooke Committee criterion of “special importance” reflects a suggestion made by a number of respondents that the Committee’s current terms of reference, particularly the first ground, might provide the principal ground for a decision to upgrade:
28.We also note the recent report of the House of Commons Procedure Committee on the scrutiny of delegated legislation under the withdrawal Bill, in which it suggests that the House of Commons sifting committee, in deciding whether a proposed negative instrument should be subject to the affirmative procedure, will be likely to take into account the following matters:
29.Under the heading of “legal importance”, the Procedure Committee suggests that:
“Ministers should have regard to the ‘Brooke criteria’ when using their discretion to determine the procedure for instruments under the Act, and, when proposing that an instrument which engages the criteria should be subject to negative resolution, ought to explain why this procedure is considered appropriate.”32
30.It is perhaps not surprising that the SLSC’s first ground for reporting might provide the basis for an overarching test to be applied to the sifting decision. In both cases–that is, the decision to report an instrument and the decision to recommend an upgrading–the purpose of a recommendation is, as the DPRRC suggests,33 the same: “to subject the instrument to the scrutiny afforded by a debate”.
31.It is also consistent, we believe, with the test of “significant public interest” that the Leader of the House told us Ministers will apply in making the initial choice between negative and affirmative procedure. She said:
“There may be some SIs made under the deficiencies and withdrawal agreement powers that do not fall within the criteria [for affirmative procedure] in the withdrawal Bill but that a Minister considers, either individually or as a group, should be subject to the affirmative procedure. We envisage these could be SIs dealing with matters where, due to a combination of what they do and the matters they cover, are of significant public interest.”34
32.We believe that the starting point in the Committee’s approach to its new sifting function is to apply an overarching test, based on the Committee’s existing “politically or legally important” ground for reporting, namely: “is the subject matter of this instrument and the scope of any policy change effected by it of such significance that the House would expect to debate it?”
33.Given this conclusion, we note with interest the recommendation of the House of Commons Procedure Committee, in considering the issue of “political importance”, that “when determining the appropriate procedure for an instrument, [the European Statutory Instruments Committee] should in our view have regard to the likely level of interest in the House in debating the matter raised”.35
34.The Leader of the House suggests in her evidence that the SLSC’s existing grounds for reporting (see paragraph 25 above) are not a good fit for the sifting function: “(a) in EU exit terms, is very broad; neither (b) nor (c) seem relevant to the sifting process; and we would expect that (d), (e) and (f) would be addressed as part of existing SLSC scrutiny procedures for the next phase of SI scrutiny post sifting”.36
35.Whilst we agree to some extent–for example, we agree with the Leader in respect of grounds (b) and (c)–we have already identified ground (a) (in paragraph 32 above) as the foundation for an overarching test and, we believe, other of the grounds may also be applicable to the sifting process. For example, the EUC suggests that the Committee should have regard to proposed negative instruments which do not appear adequately to implement retained EU law either because the instrument would imperfectly achieve its policy objective or because of poor drafting. Of those, the former is similar to one of the Committee’s current grounds for reporting, namely that an instrument may “imperfectly achieve its policy objectives”. It also has a bearing on the Committee’s new ground (g) that the instrument appears to deal inappropriately with deficiencies in retained EU law.37 We note also that the House of Commons Procedure Committee suggests that the Commons sifting committee “may take advantage of its remit to report on any matter arising from its consideration of proposals for negative instruments” to, amongst other things, “report on whether it imperfectly achieves its policy objectives”.38
36.We believe that there may also be occasion when some of the other grounds for reporting are relevant as well–for example, where the explanatory material (ground (e)) or the consultation process (ground (f)) has been found wanting.
37.We have already described the relevance of the Committee’s first ground for reporting. Although not all of the remaining grounds are a good fit for the sifting function, some of them are. We shall, therefore, have regard to them, where appropriate.
38.We acknowledge that the overarching test, expressed in paragraph 32 above, provides only limited guidance as to how the Committee might determine whether to recommend the affirmative procedure in a particular instance. We have, therefore, considered what other features, in addition to those suggested by the Committee’s current grounds for reporting, might indicate significance. Respondents made a number of suggestions. They are broadly of two types: (a) substantive–whether the instrument concerns certain policy matters; and (b) procedural–whether the instrument contains significant amendments to primary legislation.
39.Respondents suggested a range of policy matters which might indicate that the affirmative procedure is justified. Some of the suggestions relate to matters which are restricted under sections 8 and 9, and we have identified these in the footnotes to the following list. We also recognise that some of the suggestions are overlapping.
40.The suggestions include:
41.We read with interest this range of suggestions and see merit in them all. The list set out above is not however definitive. And it is, of course, the case that the impact of any of these matters will depend on how significantly it features. So, for example, the Committee will make a judgment on the extent to which there is a divergence from the EU acquis or on the degree of administrative or financial burden before deciding whether to recommend upgrading the instrument to the affirmative procedure. Nonetheless, the list in paragraph 40 provides an indication of matters which the Committee will be looking for in deciding whether to recommend the affirmative procedure.51
42.An instrument which amends, repeals or otherwise alters the effect of an Act of Parliament, including whether the power is expressed as a “modification”, is an exercise of what is commonly known as a Henry VIII power. The DPRRC told us that, in scrutinising the delegation of powers in bills, it applies a presumption that Henry VIII powers should be subject to the affirmative procedure unless there is a full explanation why the negative procedure is appropriate. The same point is made by the JCSI and reflected in the first Brooke Committee criterion.
43.We note that Linklaters does not favour this criterion on the ground that amendment to UK primary legislation may well be purely technical and uncontroversial. The City Remembrancer makes a similar point. And we note that the JCSI suggests that the presumption should, in the circumstances of the withdrawal Act, be applied with greater flexibility than normal. Given that the presumption is rebuttable, we believe that these views are not inconsistent with our conclusion that the presence of significant amendments to primary legislation should create a presumption in favour of the affirmative procedure, rebuttable by a full and convincing explanation for choosing the negative procedure.
44.During the report stage of the withdrawal Bill in the House of Lords, amendments to the withdrawal Bill were introduced by the Government concerning the status of retained EU law. Lord Callanan, Minister of State at the Department for Exiting the European Union, explained:
“We have proposed, broadly, that EU regulations and Clause 4 rights should be treated as primary legislation for the purpose of amendability and that tertiary legislation should be treated as subordinate legislation. Regulations and Clause 4 rights will therefore be amendable only by primary legislation and the very limited stock of powers to amend primary legislation on the statute book.”52
The retained EU law which is to be treated, for the purposes of amendability, as primary legislation is called “retained direct principal EU legislation”.53 Given the status of retained direct principal EU legislation, we believe that, as with primary legislation, the presence of significant amendments to such EU legislation should create a presumption in favour of the affirmative procedure, rebuttable by a full and convincing explanation for choosing the negative procedure.
45.As a consequence of our conclusions in paragraphs 43 and 44, the Government should ensure that the Explanatory Memoranda accompanying proposed negative instruments and statutory instruments laid under the withdrawal Act should include a clear indication, where appropriate, of any amendments to primary legislation or to retained direct principal EU legislation.
46.In its response, the DPRRC describes how, when it was first set up, “it concluded that it was not possible to set out a list of criteria which would give precision to the test of appropriateness. Instead it was decided that the merits of the proposed use of a delegated power [had] to be considered on a case by case basis”.54 And the Leader of the House told us that, although there were no categories which the Government believed should give rise to a presumption of the affirmative procedure, nonetheless there would be “other occasions where the Minister might determine, on a case by case basis, that the affirmative procedure is appropriate”.55 We propose, at this stage, to adopt a similar approach:
19 “Retained EU law” is defined in section 6(7) of the withdrawal Act as meaning “anything which, on or after exit day, forms part of domestic law by virtue of section 2, 3 or 4 or subsection (3) or (4) [of section 6] (as that body of law is added to or otherwise modified by or under this Act or by any other domestic law from time to time)”. So, for example, an EU Regulation which has direct effect in UK law immediately before exit day (subject to amendments made under section 8 to remedy “deficiencies”) will be “retained EU law” by virtue of Section 3.
20 See footnote 43 below.
21 (g) is subject to a proviso.
22 Section 9(3) includes the same provision as section 8(7)(a) to (d) and (f).
23 A sunset provision is a section of an Act of Parliament which imposes a time limit on powers conferred by the Act on Ministers to make secondary legislation.
24 See paras 64 to 67 below which describe the Minister’s duty under para 3(3) of Schedule 7 of the Act to lay before Parliament a statement setting out why the Minister thinks the negative procedure is appropriate and his or her reasons.
25 It is, of course, the case that, once the proposed negative instrument is laid as a statutory instrument, it will be subject to the scrutiny of the JCSI which will, amongst other things, be considering the vires of the instrument (Public Business Standing Orders 73 (2)(f)). See written evidence from the Delegated Powers and Regulatory Reform Committee (TSC0008), para 11.
26 Ground (g) was agreed by the House on 11 July 2018, along with the other changes in the SLSC’s terms of reference. See footnote 3 above.
27 Delegated Powers Scrutiny Committee, 1st Report, Session 1992–93 (HL Paper 57), Appendix 3
31 House of Commons Procedure Committee, Scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018, HC 1395, para 30.
32 Ibid., para 35.
35 House of Commons Procedure Committee, Scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018, 6th Report, Session 2017–19, HC 1395, para 38.
36 Written evidence from the Leader of the House of Lords (TSC0014). The Leader does not mention ground (g) which was added after her evidence was submitted.
37 Of course, poor drafting – once a proposed negative instrument is laid as a statutory instrument – will be of particular interest to the JCSI.
38 House of Commons Procedure Committee, Scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018, 6th Report, Session 2017–19, HC 1395, para 39.
40 The acquis (Acquis Communautaire) is the accumulated body of EU law and obligations from 1958 to date. It includes all the EU’s treaties and laws (directives, regulations, decisions), declarations and resolutions, international agreements and the judgments of the Court of Justice.
42 Written evidence from the Constitutional Law Subcommittee of the Law Society of Scotland (TSC0013).
43 See written evidence from the Delegated Powers and Regulatory Reform Committee (TSC0008) and the European Union Committee (TSC0001), and third Brooke Committee criterion. Paragraphs 1(2)(c) and 10(2)(c) of Schedule 7 to the withdrawal Act require that where powers in sections 8 and 9 respectively are used to make provision which “creates, or widens the scope of, a criminal offence”, their exercise must be subject to the affirmative procedure. Sections 8(7)(c) and 9(3)(c) prohibit the powers in sections 8 and 9 from being used to make regulations which “create a relevant criminal offence”. “Relevant offence” is defined in section 20 as an offence for which an individual could be sentenced to imprisonment for two years.
44 See written evidence from the Constitution Committee (TSC0012) and Wildlife and Countryside Link and Greener UK(TSC0006). Sections 8(7)(d) and 9(3)(d) prohibit the powers in those sections from being used to “establish a public authority”.
45 See written evidence from the Delegated Powers and Regulatory Reform Committee (TSC0008), the European Union Committee (TSC0001) and Joint Committee on Statutoty Instruments (TSC0009), and second Brooke Committee criterion. Paragraphs 1(2)(b) and 10(2)(b) of Schedule 7 to the withdrawal Act require that where powers in sections 8 and 9 respectively are used to make provision which “relates to a fee in respect of a function exercisable by a public authority in the United Kingdom”, their exercise must be subject to the affirmative procedure. Sections 8(7) (a) and 9(3) (a) prohibit the powers in those sections from being used to “impose or increase taxation or fees”.
46 Paragraphs 1(2)(d) and 10(2)(d) of Schedule 7 to the withdrawal Act require that where powers in sections 8 and 9 respectively are used to make provision which “creates or amends a power to legislate”, their exercise must be subject to the affirmative procedure.
47 See written evidence from Linklaters LLP (TSC0002), para 1.7.1. See also written evidence from the Office of the City Remembrancer (TSC0004), para 1.5.
48 See written evidence from Linklaters LLP (TSC0002), para 1.7.2. See also written evidence from the Office of the City Remembrancer (TSC0004), para 1.5.
49 See written evidence from the European Union Committee (TSC0001).
50 See written evidence from the Equality and Human Rights Commission (TSC0010), the European Union Committee (TSC0001), the Joint Committee on Statutory Instruments (TSC0009) and Constitutional Law Subcommittee of the Law Society of Scotland (TSC0013). Sections 8(7)(f) and 9(3)(e) prohibit the powers in those sections from being used to “amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it”.
51 The written evidence from the Federation of Private Residents’ Associations (TSC0005) suggested that statutory instruments bringing leasehold law into operation should be subject to the affirmative procedure. We welcome this contribution but our approach, as set out in this report, is that specific policy areas will not determine whether the instrument should be upgraded but rather the significance of the change in relation to that policy area.
53 See the definition in section 7(2) of the withdrawal Act. It includes, in particular, an EU Regulation which has direct effect in UK law immediately before exit day.
56 The Minister, when laying a proposed negative instrument, is required under paragraphs 3(3) and 17(3) of Schedule 7 to the withdrawal Act to lay a memorandum setting out his or her opinion that the negative procedure should apply and the reasons for that opinion. See paragraph 64 below.