Explanatory statements for certain powers
The Withdrawal Act sets out that certain explanatory statements must accompany statutory instruments made by ministers of the Crown under the delegated powers;
- that in the minister’s opinion the instrument does no more than is appropriate;
- that there are good reasons for the instrument or draft, and that the provision made by the instrument or draft is a reasonable course of action;
- where the regulations create a criminal offence, that there are good reasons for creating the criminal offence and for the penalty provided in respect of it;
- indicating whether the draft legislation amends/repeals/revokes equalities legislation
- and if so, what the effect is;indicating that the minister has had due regard to the need to eliminate discrimination,harassment, victimisation and any other conduct prohibited by or under the Equality Act, so far as required by equalities legislation;
- explaining the instrument or draft and its purpose; and,
- explaining what any relevant law did before exit day and how the retained EU law is being changed.
Scrutiny of power to deal with deficiencies
The Withdrawal Act sets out the three parliamentary scrutiny procedures by which regulations can be made under the power to deal with issues and deficiencies arising from withdrawal in and the circumstances in which each will apply. The main procedures are the draft affirmative (generally referred to as the affirmative), the negative (subject to a sifting procedure, except in urgent cases) and, for urgent cases, the made affirmative.
The Draft affirmative resolution procedure instruments cannot be made unless a draft has been laid before and approved by both Houses.
The Negative resolution procedure instruments become law when they are made (they may come into force on a later date) and remain law unless there is an objection from either House. The instrument is laid after making, subject to annulment if a motion to annul (known as a ‘prayer’) is passed within forty days.
Instruments to be made under the negative resolution procedure must (unless the Minister makes a declaration of urgency first be laid in draft before each House of Parliament for sifting
Made affirmative resolution procedure instruments can be made and come into force before they are debated, but cannot remain in force unless approved by both Houses within 28 days. The Government believes that the exceptional circumstances of withdrawing from the EU might necessitate the use of the made affirmative procedure so the Act allows for this as a contingency.
Affirmative procedure Mandatory
The affirmative must be used if an instrument does one or more of the things listed below:
- transfers an EU legislative function (i.e. a power to make delegated or implementing acts) to a UK body,
- relates to fees,
- creates or widens the scope of a criminal offence (although the power cannot be used to create certain criminal offences), or
- creates or amends a power to legislate (this does not include repealing or revoking.
The negative procedure can be used in other cases, though, as, that is subject to the sifting” procedure for ministers of the Crown.
The affirmative procedure must be used if an instrument is made under the power to provide for additional types of deficiencies.
The Withdrawal Act provides for the affirmative procedure to apply to certain statutory instruments made on or after exit day which would otherwise be subject to a lesser parliamentary procedure before Parliament. The requirements apply to statutory instruments that amend or revoke subordinate legislation made under the European Communities Act, and which are:
- made by a Minister of the Crown;
- made under a power conferred before the beginning of the 2017-2019 session; and
- not made jointly or otherwise subject to a procedure in another legislature (for example, the Scottish Parliament).
A statutory instrument subject to the above requirements must follow the affirmative procedure in Parliament unless a higher procedure would apply. This means the instrument must be laid in draft and approved by a resolution of each House of Parliament. In the case of instruments that are ordinarily required to be laid before the House of Commons only, the paragraph requires the instrument to be laid as a draft affirmative instrument before the House of Commons only
Type of Legislation Covered
Subordinate legislation is, for these purposes:
- in an instrument made under a power other than the European Communities Act 1972, text inserted into that instrument by amendments made under the European Communities Act 1972;
- in an instrument made under both the European Communities Act 1972 and other powers, provisions made under the European Communities Act 1972 alone; or
- in an instrument made entirely under the European Communities Act 1972 which has not been amended, other than using powers in the European Communities Act 1972, all of the provisions in that instrument.
Subordinate legislation does not include, for these purposes:
- in an instrument made under the European Communities Act 1972 and other powers, any provision made under powers other than the European Communities Act 1972. This includes whether the provision is made in the original instrument or added by amendment.;
- in an instrument made solely under the European Communities Act 1972 which has been amended using another power, the provisions inserted by that other power
- in an instrument made solely under a power other than the European Communities Act 1972 which has been amended using the European Communities Act 1972, the provisions other than the text inserted by an amending instrument made the European Communities Act 1972; or,
- provisions inserted into primary legislation under the European Communities Act 1972.
An enhanced procedure applies to apply to certain statutory instruments to be laid before parliament which are made after exit.
The Withdrawal Act provides equivalent affirmative and negative procedures in each of the devolved legislatures.
Scrutiny Statement
A “scrutiny statement” must be made by the Minister or other authority before the instrument or a draft of it is laid before Parliament. The statement must:
- explain steps taken to make the published draft statutory instrument available to Parliament,
- set out the response to any recommendations made by a parliamentary committee,
- set out the response any other representations made to the Minister or authority about the
- published draft instrument; and,
- give any other information which the Minister or authority considers is appropriate in relation to scrutiny of the proposed instrument.
The scrutiny statement must be in writing and published in a manner the Minister or authority considers appropriate. The Government expects that the statement would normally be published in the Explanatory Memoranda accompanying the statutory instrument.
There is provision for an urgent procedure whereby a statutory instrument may be made without being published in draft and without a scrutiny statement being made. The Minister or authority relying on this provision must make a written statement that the Minister or authority is of the opinion that, by reason of urgency, these requirements should not apply. The written statement about urgency must be published as the Minister or authority deems appropriate.
This Article draws on UK Parliamentary material. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).
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