Brexit Bill: Lords to investigate how statutory instruments should be scrutinised

23 April 2018

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) 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 automatically passed unless a Member tables an objection.

During the committee stage debate of the European Union (Withdrawal) Bill, Baroness Evans of Bowes Park stated the Government's intention that a similar sifting mechanism introduced in the Commons, that allows the new European Statutory Instruments Committee (ESIC) the power to recommend that a statutory instrument laid under clauses 7 to 9 should be upgraded from the negative to the affirmative procedure, should be incorporated into the terms of reference of the SLSC.

The aim of the 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), for which there should be a presumption in favour of the affirmative procedure?
  • How should the SLSC collaborate with the Joint Committee on Statutory Instruments
  • How should the SLSC collaborate with the House of Commons European Instruments Scrutiny Committee?

Chairman's quote

Chairman of the Committee, Lord Trefgarne 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 to choose 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 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."

The Committee invites any interested organisation or individual to submit written evidence to the inquiry by Friday 18 May 2018.

See our inquiries page for more details.

Further information

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