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10. Delegated legislation and other matters

Delegated legislation
General powers of the House over delegated legislation
Types of delegated legislation
Scrutiny of delegated powers and delegated legislation
Negative instruments
Affirmative instruments
Orders subject to super-affirmative and other strengthened scrutiny
procedures
Remedial orders
Legislative reform orders
Other strengthened scrutiny procedures
Northern Ireland Assembly legislation
European Union legislation
National policy statements
Scrutiny of treaties
Footnotes

Delegated legislation

10.1 Acts of Parliament do not make detailed provision for many of the subsidiary and procedural matters necessary to give effect to the policy embodied in the Act. So Acts often confer legislative power upon the Government. This legislative power is exercised by means of ‘delegated’ (or ‘secondary’) legislation. Delegated legislation is made most often by ministers but may also be made by other persons and bodies. The statutory basis for delegated legislation is usually a provision in an Act of Parliament, often referred to as the ‘parent Act’.

General powers of the House over delegated legislation

10.2 The Parliament Acts do not apply to delegated legislation, so delegated legislation rejected by the Lords cannot have effect even if the Commons have approved it. Neither House of Parliament has the power to amend delegated legislation.(1) The House of Lords has only occasionally rejected delegated legislation.(2) The House has resolved “That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration”.(3) The rules governing matters before the courts (sub judice – see page 193) do not apply to delegated legislation or to proceedings on such legislation. Delegated legislation may be debated in Grand Committee, but must return to the floor of the House if a formal decision is required.(4)

Types of delegated legislation

10.3 Delegated legislation that comes before the House consists mostly of statutory instruments.(5) The parent Act makes clear which procedures apply to the delegated legislation made under its various provisions.

10.4 The most common forms of delegated legislation are:

  • affirmative instruments,(6) which must be approved by resolutions of both Houses if they are to come into force, or remain in force having been made;
  • negative instruments, which are subject to annulment by a resolution of either House, i.e. they have effect unless specifically rejected;
  • general instruments, which may be required to be laid before Parliament for information but are not subject either to approval or annulment or to any other kind of proceedings; and
  • instruments not laid before Parliament.(7)

10.5 There are also certain ‘super-affirmative’ procedures, which give Parliament an opportunity to exercise a greater scrutiny role than it may exercise in respect of affirmative instruments.(8) Examples include human rights remedial orders (paragraphs 10.22–10.25) and legislative reform orders (paragraphs 10.26–10.29).

10.6 Other types of delegated legislation include:

  • hybrid instruments (affirmative instruments which, if they were primary legislation, would be subject to Private Business Standing Orders (PBSOs); see paragraphs 9.60–9.67); and
  • special procedure orders (which are required where certain protected categories of land, such as open space land,(9) are subject to compulsory purchase; see paragraphs 9.68–9.84).

Scrutiny of delegated powers and delegated legislation

10.7 The Delegated Powers and Regulatory Reform Committee examines the way in which bills delegate legislative power, and also scrutinises legislative reform and similar orders (see paragraph 11.56). The Secondary Legislation Scrutiny Committee scrutinises and reports on the policy content of delegated legislation (see paragraph 11.70).(10) The Joint Committee on Statutory Instruments considers and reports on technical and legal aspects of delegated legislation (see paragraph 11.72). The Joint Committee on Human Rights examines proposed remedial orders (see paragraph 11.62).

Negative instruments

10.8 Negative procedure is the most common form of parliamentary control over delegated legislation. Most negative instruments take effect on a specified future date, but some may come into effect on the date they are laid. Both negative instruments and draft negative instruments are subject to annulment in pursuance of a resolution of either House adopted within a specified time limit.

Amendments and motions relating to negative instruments

10.9 Opposition to or concern about a negative instrument may be expressed in various ways.

  • A resolution to reject a negative instrument takes the form of a motion that “an Humble Address” be presented to His Majesty praying that the instrument be annulled.(11) The reason for seeking to annul the instrument may be given, by means of the addition of the words “on the grounds that” etc.(12) The period during which a negative resolution may be moved (‘praying time’) is 40 days. Swearing-in days in either House are included in the reckoning of the 40 days, but periods of dissolution, prorogation or adjournment of both Houses for more than four days are not. Praying time in respect of an instrument laid during the recess does not therefore begin to run until one of the Houses sits.
  • Critical amendments or motions may be moved relating to negative instruments, inviting the House to call on the Government to take action or record a particular point of view, without annulling the instrument itself.
  • A negative instrument may also be debated on a neutral ‘take note’ motion, either in Grand Committee or in the House.

Negative instruments in Grand Committee

10.10 Where a neutral motion is tabled in House of Lords Business to take note of the instrument, this may be debated in Grand Committee without a referral motion, and no further proceedings are required once the debate has taken place. If another member were to table a prayer or some other substantive motion on the same instrument, the motion inviting a decision of the House, which could not be taken in Grand Committee, would take precedence. A prayer or other substantive motion may also be tabled following the debate in Grand Committee.(13)

Affirmative instruments

10.11 Affirmative instruments require the express approval of Parliament, or sometimes of the Commons only.(14) The affirmative procedure takes one of two forms, depending on the parent Act.

  • A draft affirmative instrument is an instrument that is required to be laid in draft before both Houses and will not be made or have effect unless both Houses agree to resolutions approving the draft instrument (this is by far the most common form).(15)
  • A made affirmative instrument is an instrument that is made before being laid before Parliament and which requires both Houses to agree to the appropriate resolutions approving the instrument either (a) before it may come into force, or (b) if already in force, to enable it to remain in force beyond a specified period.(16)

10.12 Motions to approve most types of affirmative instrument may not be moved until a report on the instrument from the Joint Committee on Statutory Instruments has been laid before the House.(17) Special considerations apply to certain categories of affirmative instrument, such as those laid under section 17 of the Legislative and Regulatory Reform Act 2006 and hybrid instruments (see SO 73 and paragraphs 10.26–10.29 and 9.60–9.67).

10.13 A motion to approve an affirmative instrument must be moved by a minister of the Crown. If the responsible minister is unable to be in the Chamber, another minister may move the motion on their behalf.

Amendments and motions relating to affirmative instruments

10.14 Opposition to or concern about an affirmative instrument may be expressed in a number of ways (in addition to speaking in the debate in Grand Committee or on the approval motion). For example:

  • members may give notice of direct opposition by means of an amendment to the approval motion, the effect of which would be to withhold the agreement of the House;(18)
  • members may, by means of an amendment or a separate motion, call upon the Government to take specified action (but without seeking to prevent the approval of the instrument); or
  • members may, by means of an amendment or a separate motion, invite the House to put on record a particular point of view relating to the instrument, but without calling on the Government to take any specific action.

10.15 It is usual for all such amendments and motions to be debated at the same time as the substantive approval motion on the instrument. Notice should be given of any intention to oppose a motion or amendment concerning delegated legislation.(19) Manuscript amendments to motions relating to statutory instruments are not allowed.

Moving affirmative instruments en bloc

10.16 If several affirmative instruments are closely enough related to justify being taken together, or have been debated in Grand Committee (see paragraph 10.18), the motions for resolutions or Addresses on them may be moved en bloc.(20) It is for the minister in charge, in the first instance, and ultimately for the House, to decide whether groups of instruments qualify for this procedure. An en bloc motion may be moved only with the unanimous leave of the House; if any member objects, motions on the individual instruments must be moved separately to the extent desired.(21) Notice of a motion to take instruments en bloc is given by means of an italic note in House of Lords Business reminding members of their right to object to taking the instruments en bloc.

Affirmative instruments in Grand Committee

10.17 Affirmative instruments may be considered in Grand Committee. No referral motion is required. After the debate has been held in Grand Committee each instrument is approved by the House on a separate motion. The en bloc procedure set out in paragraph 10.16 applies in Grand Committee.

10.18 Motions to approve affirmative instruments after they have been debated in Grand Committee are normally taken en bloc in the House. The requirement for the unanimous leave of the House applies as for other en bloc motions.(22)

Orders subject to super-affirmative and other strengthened scrutiny procedures

10.19 Certain parent Acts make orders subject to a form of parliamentary procedure more rigorous than the affirmative procedure. The most commonly used are procedures under the Human Rights Act 1998 and the Legislative and Regulatory Reform Act 2006.(23)

10.20 The parent Act sets out the precise scrutiny procedure, which varies in each case, though they share some or all of the following characteristics:

  • a requirement for the Government to consult before laying a draft order or draft proposal before Parliament;
  • a requirement to lay supporting documents with the draft order;
  • power for a designated scrutiny committee in each House to determine the level of parliamentary scrutiny the draft order is subject to;
  • power for a designated scrutiny committee to recommend the draft order be not proceeded with; and
  • a requirement for the minister to consider or take account of recommendations made by the relevant committee, or resolutions made by either House.(24)

10.21 The scrutiny procedures that apply under the various Acts are described in more detail in the following paragraphs.

Remedial orders

10.22 Under section 10 of the Human Rights Act 1998, if primary legislation is found by a higher United Kingdom court or by the European Court of Human Rights to be incompatible with the European Convention on Human Rights, then “If a minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”. Such an order is known as a remedial order, and is subject to special procedures set out in Schedule 2 to the Act.

10.23 For non-urgent orders, the minister must first lay a document containing a draft order and an explanation of why it is being made. Parliament and the public have 60 days (not counting prorogation, dissolution, or any adjournment of both Houses for more than four days) to make representations; “representations” explicitly includes “any relevant parliamentary report or resolution”. The minister may then lay a second draft order. If there have been representations, a summary of them must be laid; and if the second draft order is different from the first, the changes must be explained. After a second 60-day period, the order may be approved by both Houses, and, if approved, may then be made.

10.24 If the order is declared to be urgent, it may be made before being laid. It is then laid, with an explanatory document. There follow 60 days for representations, counted from the date of making the order. If representations are made, the minister must lay a summary; and, if it is intended to amend the original order, a new order may be made and laid, with an explanation. Both Houses must then approve the original or replacement order within 120 days of the making of the original order; otherwise the orders lapse.

10.25 The Joint Committee on Human Rights is charged to consider remedial orders, and to perform for such orders the functions otherwise carried out by the Joint Committee on Statutory Instruments. Under SO 73, no motion to approve such an order may be moved until the Joint Committee’s report has been laid before the House. In the case of a draft order, the Joint Committee must report within 60 days of the laying of the draft. In the case of an urgent order, the Joint Committee must report within 119 days of the making of the original order.(25)

Legislative reform orders

10.26 The Legislative and Regulatory Reform Act 2006 gives ministers wide-ranging powers to amend primary legislation by order, so as to remove or reduce burdens (section 1) or to promote regulatory principles (section 2). The key components of the statutory scrutiny procedure are: (a) the minister recommends which scrutiny procedure should apply to the draft order (negative, affirmative or super-affirmative), although that recommendation is subject to a decision of either House to upgrade the scrutiny procedure; (b) either House may propose amendments to the draft order; and (c) either House may veto the instrument.

10.27 In summary the procedure is as follows:

  • A minister wishing to make an order under the Act must first consult on their proposals.
  • The minister must lay a draft order before both Houses, with an explanatory document recommending which procedure should apply: negative resolution; affirmative resolution; or super-affirmative resolution (see paragraph 10.29).
  • Within 30 days of the date the draft order is laid, either House may require that another procedure should apply—requiring either that a draft order laid as a negative instrument be treated as an affirmative instrument or a super-affirmative instrument, or that a draft order laid as an affirmative instrument be treated as a super-affirmative instrument.
  • The procedure to which the draft order is subject may be changed in one of two ways. Either (a) the designated scrutiny committee in one or other House recommends another procedure, and this becomes the requirement unless, within the 30-day period, a contrary resolution is passed by the relevant House; or (b) one or other House resolves that another procedure should apply.

10.28 In the House of Lords, the Delegated Powers and Regulatory Reform Committee is the designated scrutiny committee in respect of legislative reform orders (LROs).

10.29 The three procedures set out in the 2006 Act are as follows:

  • Negative procedure (section 16). The minister may make the order unless, within 40 days from the date the draft order was laid, either House resolves otherwise, or the designated scrutiny committee of either House recommends otherwise (and that recommendation is not rejected by the relevant House in the same session).
  • Affirmative procedure (section 17). The minister may make the order if, after the expiry of 40 days from the date the draft order was laid, both Houses resolve to approve the draft. If, however, the designated scrutiny committee of either House recommends within the 40-day period that the order should not proceed, it may not proceed unless that recommendation is rejected by resolution in the same session.
  • Super-affirmative procedure (section 18). The draft order is laid before both Houses for 60 days, during which time either House may make resolutions, and the designated scrutiny committee of each House may make recommendations. The minister must have regard to any resolutions or recommendations, or any other representations made during the 60 days. After the 60-day period, the minister may decide either to proceed with the draft order without amendment or lay a revised draft which is subject to the normal affirmative procedure. In either case, the minister must lay before Parliament a statement about any representations received. Between the laying of the statement (or the revised draft and the statement) and the approval of the draft, the designated scrutiny committee of either House may recommend that the order should not proceed, in which case it may not then proceed unless the relevant House rejects the recommendation, by resolution, in the same session.

Other strengthened scrutiny procedures(26)

Northern Ireland Act 1998

10.30 Section 85 of the Northern Ireland Act 1998 provides that His Majesty may, by Order in Council, make provision about certain of the “reserved matters” specified in Schedule 3 to the Act. In summary, the procedure for the scrutiny of these orders is as follows:

  • Before any recommendation can be made to His Majesty to make an Order in Council under section 85, a draft order must be laid and approved by resolution of both Houses.
  • Before any draft order is laid before Parliament, the Secretary of State must lay before Parliament a document containing a draft of the proposed order and refer the document to the Northern Ireland Assembly for consideration.
  • There is a scrutiny period of 60 days from the date the document is laid before Parliament.
  • After the expiry of the 60-day period, the Secretary of State can lay a draft order together with a statement (i) summarising any representations made during the 60-day scrutiny period, (ii) containing any report made to the Secretary of State by the Northern Ireland Assembly, and (iii) giving details of any changes made to the proposed order as a result of representations made. The term “representations” includes resolutions of either House or the Assembly or a relevant report or resolution of any committee of either House or the Assembly.

10.31 This scrutiny procedure does not apply if, by reason of urgency, the order is required to be made without a draft having been considered and approved as set out in paragraph 10.30. In this case, the Order in Council is laid before Parliament after having been made and ceases to have effect after 40 days, unless within that period it has been approved by resolution of both Houses.

10.32 In the House of Lords, orders under the Northern Ireland Act 1998 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

Local Government Act 1999

10.33 Section 16 of the Local Government Act 1999 enables the Secretary of State, by order, to modify or exclude the application of any enactment which they think prevents or obstructs compliance by “best value authorities” with the principles of best value, in particular the duty “to secure continuous improvement” in the way they exercise their functions (section 3). Such orders may also confer new powers on authorities to permit or facilitate such compliance. In summary, the procedure for the scrutiny of these orders is as follows:

  • The Secretary of State must consult before making an order.
  • They must lay before Parliament a document explaining the proposals, and, in particular, setting out the proposed draft order and giving details of the consultation.
  • There is a scrutiny period of 60 days from the date the document is laid, and the Secretary of State must consider any representations made during this period.
  • At the expiry of the 60 days, the Secretary of State may lay before Parliament a draft order for approval, accompanied by a statement giving details of any representations received and any changes made to the original proposal laid before Parliament.

10.34 In the House of Lords, orders under the Local Government Act 1999 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

Local Government Act 2000

10.35 Sections 5 and 6 of the Local Government Act 2000 enable the Secretary of State to amend, repeal, revoke or disapply any enactment which they think prevents or obstructs local authorities from exercising their power under section 2(1) to promote well-being, or which requires a local authority to prepare, produce or publish any plan or strategy relating to any particular matter. The procedure for the scrutiny of these orders, set out in section 9 of the Act, is similar to that for orders made under section 16 of the Local Government Act 1999 (paragraph 10.33). In the House of Lords, these orders are scrutinised by the Delegated Powers and Regulatory Reform Committee.

Local Government Act 2003

10.36 Section 97 of the Local Government Act 2003 enables the Secretary of State to amend, repeal, revoke or disapply enactments which either (a) they consider prevent or obstruct “best value authorities” (see paragraph 10.33) charging for the provision of discretionary services, or doing for a commercial purpose anything which they are authorised to do as part of their ordinary functions, or (b) make provision for or in connection with such charging. The procedure for the scrutiny of these orders is similar to that for orders made under section 16 of the Local Government Act 1999 (paragraph 10.33). In the House of Lords, these orders are scrutinised by the Delegated Powers and Regulatory Reform Committee.

Fire and Rescue Services Act 2004

10.37 Section 5C(1) and (2) of the Fire and Rescue Services Act 2004 enable the Secretary of State to amend, repeal, revoke or disapply any provision which they think either (a) prevents or restricts fire and rescue authorities from exercising any power conferred by section 5A(1) to do, for a commercial purpose or otherwise, things that are incidental to or connected with their functions, or (b) overlaps any such power. The procedure for scrutiny of such orders is the same as for LROs (paragraphs 10.26–10.29), except that the ministerial undertakings given in respect of LROs do not extend to the use of these orders. In the House of Lords, orders under the Fire and Rescue Services Act 2004 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

Local Transport Act 2008

10.38 Section 101 of the Local Transport Act 2008 enables the Secretary of State by order to amend, repeal, revoke or disapply any enactment they think prevents or obstructs “Integrated Transport Authorities” from exercising their power under section 99(1) to promote economic, social or environmental well-being in their areas. The procedure for the scrutiny of these orders is similar to that for orders made under section 16 of the Local Government Act 1999 (paragraph 10.33). In the House of Lords, these orders are scrutinised by the Delegated Powers and Regulatory Reform Committee.

Localism Act 2011

10.39 Under section 5 of the Localism Act 2011 the Secretary of State may by order amend, repeal, revoke or disapply a statutory provision which they think prevents a local authority from exercising its “general power of competence” (conferred by section 1 of the Act), or which they think overlaps that general power. The procedure for scrutiny of such orders is the same as for LROs (paragraph 10.26–10.29), except that the ministerial undertakings given in respect of LROs do not extend to the use of these orders.

10.40 Under section 15 of the Localism Act 2011, the Secretary of State may by order apply, extend, disapply, amend, repeal or revoke any enactment in order either to transfer a local public function from the public authority whose function it is to a “permitted authority”, or to make provision about the discharge of functions which have already been transferred. The procedure for scrutiny of such orders is based on that for LROs except that (a) the level of scrutiny is specified in section 19 of the Act, and there is no power for either House or the designated scrutiny committee in either House to change the scrutiny arrangements, and (b) the ministerial undertakings given in respect of LROs do not extend to the use of these orders. In the House of Lords, orders under sections 5 and 15 of the Localism Act 2011 are scrutinised by the Delegated Powers and Regulatory Reform Committee.

European Union (Withdrawal) Act 2018

10.41 Exceptionally, a minister may choose whether instruments laid under sections 8 and 23(1) of the European Union (Withdrawal) Act 2018 should be subject to the negative or affirmative procedure.(27) (28) Where a minister proposes that an instrument should be a negative instrument, the sifting procedure set out in Schedule 7 to the Act applies. This requires a minister to lay before both Houses a draft of the instrument (commonly called a proposed negative instrument) along with a statement that in their opinion the negative procedure should apply and with a memorandum setting out the reasons for that opinion. A committee in each House may then, within a period of 10 sitting days beginning with the first day on which both Houses are sitting after the day the draft instrument was laid, recommend that the instrument should be upgraded to the affirmative procedure. If the minister rejects a recommendation to upgrade the instrument, they must make a statement explaining why. In the House of Lords, proposed negative instruments laid under the European Union (Withdrawal) Act 2018 are scrutinised by the Secondary Legislation Scrutiny Committee.

10.42 Schedule 8 to the European Union (Withdrawal) Act 2018 makes provision for a strengthened scrutiny procedure for statutory instruments which amend or revoke subordinate legislation made under section 2(2) of the European Communities Act 1972. Paragraph 13 of Schedule 8 requires all such instruments to be subject to the affirmative procedure. Paragraph 14 requires the Government to publish, in a manner they consider appropriate, a draft of the instrument at least 28 days before laying. The Government are then required to make a “scrutiny statement” which must set out what steps were taken to make the draft available to Parliament and the Government’s response to any recommendation made by a committee of either House about the published draft. In addition, paragraph 15 requires the Government to make two explanatory statements: why there are good reasons for the revocation or amendment, and the effect of the amendment or revocation on retained European Union law. In the House of Lords, draft instruments published under Schedule 8 to the European Union (Withdrawal) Act 2018 are scrutinised by the Secondary Legislation Scrutiny Committee.

European Union (Future Relationship) Act 2020

10.43 A similar sifting procedure (see paragraph 10.41) applies to instruments laid under section 31 of the European Union (Future Relationship) Act 2020. The sifting procedure is set out in Schedule 5 to the Act and is time-limited to two years from Implementation Period completion day and so expires on 31 December 2022. In the House of Lords, proposed negative instruments laid under the European Union (Future Relationship) Act 2020 are scrutinised by the Secondary Legislation Scrutiny Committee.

Northern Ireland Assembly legislation(29)

10.44 The Northern Ireland Assembly legislates on transferred or devolved matters, and the United Kingdom Parliament has no part to play in the enactment of such legislation. However, certain matters such as taxation and international relations are excepted or reserved for legislation by the United Kingdom Parliament. The Northern Ireland Assembly can legislate on excepted and reserved matters with the consent of the Secretary of State.

10.45 In such circumstances, section 15 of the Northern Ireland Act 1998 provides that the Secretary of State may not submit for Royal Assent a bill of the Northern Ireland Assembly touching on an excepted or reserved matter unless they have laid the bill before the United Kingdom Parliament. In an urgent case, the Secretary of State may submit the bill for immediate Royal Assent; but they must then lay the Act before both Houses at Westminster. Either way, when such a bill or Act has been laid at Westminster, each House has 20 sitting days within which a motion to oppose the bill or Act may be tabled.

10.46 Under the Act, any such motion must be signed by at least 20 members of the House. The usual rules of the House on adding names to motions (see paragraph 6.55) are dispensed with for these motions on Northern Ireland Assembly legislation.

10.47 Procedure on these motions is as follows:

  • When a Northern Ireland Assembly bill or Act is laid before the House, its arrival is recorded in the Minutes of Proceedings, and in a table in the legislation section of House of Lords Business entitled “Northern Ireland Assembly Legislation on Reserved/Excepted Matters in Progress”. This table shows the expiry date of the 20-day statutory period. If 20 sitting days pass and no motion is put down, the House’s involvement is at an end.
  • If within the 20 days a member of the House tables a motion to oppose the bill or Act, the motion is published in House of Lords Business.
  • Signatures to the motion may be added in the Table Office or the Legislation Office.
  • Signatories to the motion are listed in House of Lords Business. If further members of the House add their names, they are added to the list. Once 20 have signed, the list is replaced with a total number.
  • A signature is required, either on a copy of the motion, or on a note clearly indicating the member’s wish to be associated with the motion. Fax, email and telephone are not acceptable.
  • The master copy of the motion, with a consolidated list of signatures, is kept in the Table Office, and is open for inspection.
  • Members may withdraw their signatures at any time, by giving written authority in the same form.
  • If, on the 20th day, the number of signatories has not reached 20, the motion is ineffective. If it has reached 20, the motion may be put down for a named day and debated in the usual way. When the motion is put down for a named day, only the name of the member who originally tabled the motion appears on the order paper as the member who is to move the motion. The total number of signatures which the motion has attracted is indicated with the text of the motion.

European Union legislation(30)

10.48 Most procedures relating to scrutiny of European Union legislation lapsed with the United Kingdom’s withdrawal from the European Union on 31 January 2020, or with the subsequent end of the post-withdrawal transition period on 31 December 2020. However, the European Affairs Committee retains responsibility for scrutinising, among other things, documents made under the Withdrawal Agreement and the Trade and Cooperation Agreement, as well as EU documents that would significantly engage the UK’s diplomatic or political interests, and its Sub-Committee on the Protocol on Ireland/Northern Ireland has responsibility for scrutinising new or amended EU legislation applying to Northern Ireland under the Protocol. This takes the form of a document-based scrutiny system, on the basis of explanatory memoranda submitted by government departments.

National policy statements

10.49 National policy statements (NPSs) set out national policy on particular types of development. Under section 9(2) of the Planning Act 2008 each proposal for a NPS must be laid before Parliament. In so doing, the Secretary of State specifies a relevant period for parliamentary scrutiny. If, during this scrutiny period, either House passes a resolution with regard to the proposal, or a committee of either House makes recommendations regarding the proposal, the Secretary of State must lay before Parliament a statement setting out their response to the resolution or recommendations. The proposal is then laid before Parliament again, and is subject to approval by resolution of the House of Commons before being formally designated as a NPS. The final NPS is also laid before Parliament.(31)

10.50 In the House of Lords, NPSs are normally debated in Grand Committee, for up to four hours. However, this does not restrict the freedom of committees of the House or of individual members to make use of the statutory procedures outlined in paragraph 10.49. In the event of a motion for resolution being tabled, the usual channels have undertaken to provide time for a debate in the Chamber within the scrutiny period.(32)

Scrutiny of treaties(33)

10.51 No treaty(34) may be ratified unless the minister responsible has:

  • laid a copy before Parliament;
  • published it; and
  • allowed a period of 21 sitting days (beginning with the day after that on which the treaty was laid) during which either House may resolve that the treaty should not be ratified.

10.52 The minister may extend the scrutiny period by up to 21 sitting days, by publishing and laying before Parliament a statement to that effect before the original period expires; this can be done more than once.

10.53 If the House of Lords passes a resolution within the 21 sitting days (or within the extended scrutiny period) that the treaty should not be ratified, the Government can only proceed with ratification after they have laid a statement before Parliament explaining why the minister believes the treaty should nevertheless be ratified.

10.54 These requirements do not apply if the minister is of the opinion that, exceptionally, the treaty should be ratified without their being met. In such a case, either before or as soon as practicable after the treaty has been ratified, it must be published and laid before Parliament by the minister, along with a statement explaining why the treaty is being ratified outside this process.

10.55 In laying a treaty before Parliament, the minister shall also publish an explanatory memorandum explaining the provisions of the treaty, the reasons for seeking its ratification, and such other matters as the minister considers appropriate.

10.56 For the purposes of these provisions, a sitting day is a day when both Houses are sitting.

10.57 Treaties, as instruments subject to parliamentary proceedings, were formerly scrutinised by the Secondary Legislation Scrutiny Committee. In January 2019, the Procedure Committee agreed that the European Union Committee would, on a temporary basis, scrutinise those treaties laid before Parliament that replaced existing agreements to which the UK was party by virtue of its EU membership.(35) In January 2020, the Liaison Committee agreed to the establishment of an International Agreements Sub-Committee of the European Union Committee to take responsibility for scrutiny of all treaties, superseding previous arrangements. In the context of wider changes to the former European Union Committee structure, the Liaison Committee agreed in December 2020 to replace the International Agreements Sub-Committee with a standalone International Agreements Committee. (36) The International Agreements Committee was duly established on 28 January 2021 “to consider matters relating to the negotiation, conclusion and implementation of international agreements, and to report on treaties laid before Parliament in accordance with Part 2 of the Constitutional Reform and Governance Act 2010”.

Footnotes

1 Except in the very small number of cases where the parent Act specifically provides for such amendment, see: Census Act 1920 s. 1(2), Civil Contingencies Act 2004 s. 27(3).

2 The last four instances of the rejection of an affirmative instrument were 18 June 1968 (Southern Rhodesia (United Nations Sanctions) Order 1968), 22 February 2000 (Greater London Authority (Election Expenses) Order 2000), 28 March 2007 (Gambling (Geographical Distribution of Casino Premises Licences) Order 2007) and 3 December 2012 (Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012). A motion for an Address praying against a negative instrument (the Greater London Authority Elections Rules 2000) was agreed to on 22 February 2000. On 26 October 2015, the House agreed two motions (both on a division) to decline to consider the draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 until certain specified conditions had been met.

3 LJ (1993–94) 683; HL Deb. 20 October 1994, cols 356–83.

4 Procedure 3rd Rpt 2003–04; 1st Rpt 2008–09.

5 The Statutory Instruments Act 1946 defines the main categories of statutory instrument.

6 SO 73.

7 Codes of practice and protocols may also be delegated legislation, although in most cases they are not legally binding and are described as ‘quasi-legislation’.

8 See Delegated Powers and Regulatory Reform Committee, Special Report: Strengthened Statutory Procedures for the Scrutiny of Delegated Powers, 3rd Rpt, Session 2012–13, HL Paper 19.

9 See Acquisition of Land Act 1981, s. 19(1).

10 The Secondary Legislation Scrutiny Committee also scrutinises proposed negative instruments laid before Parliament under the European Union (Withdrawal) Act 2018 (“the 2018 Act”) and the European Union (Future Relationship) Act 2020, and draft instruments published under Schedule 8 to the 2018 Act. Procedure 5th Rpt 2017–19, Procedure 6th Rpt 2019–21.

11 The procedure is set out in the Statutory Instruments Act 1946.

12 Procedure 6th Rpt 2010–12.

13 Procedure 1st Rpt 2008–09. While debates on neutral ‘take note’ motions on negative instruments are deemed suitable for consideration in Grand Committee, they may also be debated in the Chamber.

14 These are primarily financial instruments. The rest of this paragraph refers to both Houses but it must be remembered that some instruments need only be laid before and approved by the House of Commons.

15 In some cases one or both Houses must present Addresses to the Crown praying that the instrument be made.

16 Stated in the parent Act and usually 28 or 40 days in duration.

17 SO 73. The House has agreed from time to time to dispense with the standing order, see for instance 13 December 2021.

18 This may take the form of a motion to ‘decline to approve’ the affirmative instrument. It may also take the form of a motion to ‘decline to consider’ the affirmative instrument until certain specified conditions have been met. See debate on the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 on 26 October 2015.

19 Procedure 1st Rpt 1990–91.

20 Procedure 2nd Rpt 1970–71.

21 Procedure 3rd Rpt 1971–72.

22 Procedure 1st Rpt 2005–06.

23 Similar procedures are found in the Northern Ireland Act 1998 (s. 85), the Local Government Act 1999 (s. 17), the Local Government Act 2000 (s. 9), the Local Government Act 2003 (s. 98), the Fire and Rescue Services Act 2004 (s. 5E), the Local Transport Act 2008 (s. 102), and the Localism Act 2011 (ss 7 and 19). See paragraphs 10.30–10.40.

24 See Delegated Powers and Regulatory Reform Committee, 3rd Rpt, 2012–13 (HL Paper 19).

25 Procedure 3rd Rpt 1999–2000.

26 A fuller account of some these procedures is given in the Delegated Powers and Regulatory Reform Committee 3rd Rpt 2012–13.

27 Regulations may be made under section 8 for two years from Implementation Period completion day (31 December 2020) and under section 23(1) for 10 years after that day.

28 It is usual for the parent Act to specify the procedure.

29 Procedure 4th Rpt 1999–2000.

30 Procedure 2nd Rpt 2009–10.

31 Planning Act 2008 s. 9 and s. 5, as amended by the Localism Act 2011, s. 130.

32 Procedure 2nd Rpt 2008–09. A similar procedure was applied to the Marine Policy Statement (Procedure 3rd Rpt 2010–12).

33 See Constitutional Reform and Governance Act 2010, ss 20–25.

34 This procedure does not apply to (i) double taxation conventions and arrangements and international tax enforcement arrangements; and (ii) treaties concluded under authority given by the UK Government by any of the Channel Islands, the Isle of Man or any of the British Overseas Territories.

35 Procedure Committee Decision, 14 January 2019.

36 Liaison Committee 5th Rpt 2019–21.