The House of Lords Secondary Legislation Scrutiny Committee
(SLSC) has asked for evidence for its new inquiry which will
investigate the criteria which should be applied in deciding
whether a statutory instrument (SI) to be laid under clauses 7 to
9 of the European Union (Withdrawal) Bill should be upgraded from
a negative to an affirmative procedure instrument.
Affirmative SIs are debated in the House while negative
instruments are not and automatically passed unless a Member
tables an objection.
The House of Commons has already agreed to establish
a European Statutory Instruments Committee (ESIC) with power to
recommend that an SI laid under clauses 7 to 9, which the
Government intend should be subject to the negative procedure,
should be upgraded to the affirmative procedure. During the
recent committee stage debate of the European Union (Withdrawal)
Bill in the Lords, the Leader, , said
that a similar sifting function should be undertaken in the Lords
and that it should be achieved by incorporating it into the terms
of reference of the SLSC.
The aim of this narrowly-focused inquiry is to seek
views on what factors the SLSC should be considering when
deciding whether to recommend that a proposed negative instrument
should instead be subject to the affirmative
procedure.
The Committee is likely to cover areas
including:
-
What criteria should the SLSC apply in deciding
whether to recommend that a proposed negative instrument laid
under the withdrawal legislation should be upgraded to an
affirmative instrument?
-
Should those criteria reflect or differ from the
grounds for reporting currently contained in the SLSC’s terms
of reference?
-
Are there any categories of subject matter, aside
from those stipulated on the face of the legislation (such as
the creation of criminal offences or making retrospective
provision), which should only follow the affirmative
procedure?
-
How should the SLSC work with the Joint Committee
on Statutory Instrument
-
How should the SLSC work with the House of Commons
ESIC?
Chairman of the Committee,
said:
“The EU Withdrawal Bill includes wide powers for
ministers to make secondary legislation. Under clauses 7 to 9 of
the Bill, a small number of matters have to be dealt with by way
of regulations subject to the affirmative procedure. But if an
exercise of powers does not fall within one of those matters,
ministers are able tochoose whether the affirmative
or negative procedure should apply.
“It is essential that secondary legislation is
properly scrutinised and that those instruments containing
particularly significant policy changes should be subject to the
affirmative procedure so that they have to be debated and
approved by Parliament before they can become law. I encourage
all those that can inform the inquiry to submit
evidence.”
Written evidence should be submitted online
using the written submission form available here by
Friday 18 May 2018. This page
also provides guidance on submitting
evidence.
Notes to Editors
-
The SLSC Committee considers every negative and
affirmative Statutory Instrument (SI) laid before Parliament
with a view to determining whether the special attention of the
House should be drawn to it on grounds including that it is
politically or legally important or gives rise to issues of
public policy likely to be of interest to the
House.
-
Secondary, or delegated, legislation may be used to
make changes to an existing Act of Parliament (primary
legislation). These powers are called Henry VIII powers and are
specified in the Act under which the power is
granted.
-
Statutory Instruments (SIs) are the most frequently
used type of secondary legislation. They are drafted by the
relevant government department and are always accompanied by an
Explanatory Memorandum, also provided by the
Government.
-
This explains, in simpler language, what the effect
of the instrument will be. Memoranda are not primarily intended
for legal experts, but for members of Parliament and members of
the public who may not be familiar with the subject matter
described or technical terms.
