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

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, Baroness Evans of Bowes Park, 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, 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 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.

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