Supply of Affirmative Instruments to the Committees

1. Many Departments routinely send a draft of affirmative instruments to the Committee’s legal adviser, before the draft is laid. Provided that sufficient time is allowed, this process can help to avoid difficulties about powers, drafting, etc. arising at a later stage, and assists both the Department and the Committee in minimising any delay in the passage of an instrument. Unless otherwise agreed with the legal adviser, Departments should normally allow a period of not less than two weeks for this advance scrutiny.

2. Counsel to the Chairman of Committees and Deputy Counsel in the House of Lords advise the Joint Committee on affirmative instruments and drafts.

3. Affirmatives for the Commons only are for the Select Committee, and should be sent to Counsel (Legislation) in the House of Commons.

4. This advance scrutiny is not a substitute for internal Departmental checks. The draft should normally be sent to the Committee's legal adviser only when it is considered to be in the form in which it could be laid. Where the approval of Parliamentary Counsel is required (where, for instance, the instrument amends primary legislation), the draft should be sent only after approval has been given. The draft should also have been checked, in accordance with the Department's own arrangements, to the same level as that required for an instrument being submitted for signature and have been approved by an SCS lawyer as being in a form suitable for laying.

5. Departments should be aware of each Committee’s interest in the wider aspects of its terms of reference, and particularly in those matters which go beyond the technicalities of drafting.  Departments are reminded not to assume that the Committee will never wish to request further information about an affirmative instrument or draft following its initial consideration. Departments should not, therefore, prepare their timetables on the basis that the Committee will always complete its consideration of an affirmative instrument or draft at its first meeting following the laying of the instrument before Parliament.

6. Departments are further reminded of the timetables applying to the scrutiny of affirmative instruments and drafts. An affirmative instrument or draft will be considered at a Wednesday Committee meeting if it has been laid before Parliament, and delivered to the Committee’s office, by close of business on the Wednesday two weeks previously. But if the Committee’s legal adviser has had a sufficient opportunity to see in advance, and comment on, an earlier draft (in substantially the same form as laid) the instrument can normally be considered at a Wednesday Committee meeting if it has been laid before Parliament, and delivered to the Committee’s office, by close of business on the preceding Wednesday.

7. If, in exceptional circumstances, a Department wishes an affirmative instrument or draft which has been laid and supplied to the Committee’s office later than the applicable deadline to be considered at a particular meeting, a ministerial letter to the Chairman will be required setting out the reasons why expedited consideration is thought necessary. The Committee’s general approach is to allow such expedited consideration only where compelling reasons have been shown.