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27 July 2017

17: Great Repeal Bill – Latch on to the affirmative

Our previous post considered the ‘Henry VIII powers’ which the Bill would grant to Ministers of the Crown and the devolved governments, authorising them, by means of regulations, to modify not only secondary legislation (ie other regulations, orders and rules), but also primary legislation (ie Acts of Parliament). This post looks at the other side of the same coin, namely, the mechanisms which the Bill provides for Parliament (and, in outline, the devolved legislatures) to scrutinise such legislation before it becomes law.

Bills go through a number of stages in both House of Commons and House of Lords before becoming Acts of Parliament. This allows MPs and the Lords to consider and vote on the provisions. Delegated legislation, on the other hand, is subject to much simpler scrutiny procedures, specified in the Act under which they are made.

Schedule 7 of the Bill provides for the scrutiny procedures for secondary legislation made pursuant to the powers in clauses 7, 8 and 9 (and the equivalent powers for the devolved governments under clause 10 and Schedule 2). Scrutiny in Parliament will usually take one of two forms:

  • the negative procedure under which an instrument is laid before both Houses, usually after being made. Either House may within 40 days pass a motion that the instrument be annulled (that is, revoked). The instrument may come into force at any time after it is made and remains in force until it expires or is revoked or annulled. Negative instruments are only debated if an MP specifically requests a debate; and
  • the affirmative procedure under which an instrument is usually laid before Parliament in draft and must be approved by both Houses before it may be made. Affirmative instruments are always debated, and the Joint Committee on Statutory Instruments has to report on the instrument.

Most regulations made under clauses 7, 8 and 9 will be subject to the ‘negative procedure’. The Government’s justification for this is set out in the Delegated Powers Memorandum submitted with the Bill:

‘For those areas that are principally mechanistic, such as amending references, the negative procedure (or the equivalent in the devolved legislatures) can be used. We have taken the same approach to changes to either primary or secondary legislation: some changes to primary can be mechanistic and minor. Adopting the affirmative procedure for small corrections to primary legislation would produce impractical results. Instead, the requirement for affirmative procedures is based on the type of correction rather than where the correction is being made.’

Schedule 7, paras 1(2), 5(2) and 6(2) set out the criteria that will trigger the use of the affirmative procedures for statutory instruments made under the Bill. These are that the regulations:

  • establish a new public authority – this will involve setting up new systems and spending public money both for set-up and ongoing expenses, so Parliament (or the relevant devolved legislature) should scrutinise the creation of the body and debate the Government’s (or the relevant devolved authority’s) choices to understand why an existing body could not do the job;
  • transfer functions to newly created public authorities (for similar reasons);
  • transfer EU legislative powers (ie powers to make delegated or implementing acts) to a UK body. Relevant legislatures must debate the delegation of legislative power and the Government’s choices about who can exercise it and how;
  • relates to fees. The Government recognises that the decision whether to charge for a particular function or service is a choice with impact on industry or individuals;
  • creating or amending criminal offences. This has important implications for citizens; and
  • creating or amending a power to legislate. This involves sub-delegation. Parliament must debate the delegation of legislative power and choices about where it is held.

However the Bill also provides that ‘in certain urgent cases’, a Minister can make regulations which come into force immediately without a draft being laid Parliament, but Parliament has then to see a draft and to approve it within one month or the regulations cease to have effect. This is known as the ‘made affirmative’ procedure. The Government’s justification for this is as follows:

‘The made affirmative procedure will be available as a contingency should there be insufficient time for the draft affirmative procedure for certain instruments before exit day. The risk that statutory instruments made under the made affirmative procedure could be overturned must be balanced with the need to have a functioning statute book on exit day. The House of Lords Constitution Committee, whilst urging restraint, accepted that ‘in a very limited number of circumstances there may be grounds for seeking to fast-track parliamentary procedure of draft affirmative instruments’. The Government believes that the exceptional circumstances of withdrawing from the EU might necessitate the use of the made affirmative procedure so the Bill allows for this as a contingency.’

Opposition MPs may push for the Bill to prescribe the use of more stringent super-affirmative procedures in certain circumstances, as these have previously accompanied the grant of extensive Henry VIII powers (such as in the Human Rights Act 1998, the Legislative and Regulatory Reform Act 2006 or the Public Bodies Act 2011). These additional statutory scrutiny safeguards (discussed in more detail here) would give both Houses the opportunity for a greater level of control over the exercise of such powers. Additional scrutiny elements included in earlier legislation are:

  • requirements to consult;
  • requirements to lay supporting documents;
  • power for a relevant committee to determine level of Parliamentary scrutiny (as suggested by the Constitution Committee, given Brexit’s uncharted waters);
  • power for a relevant committee to veto order;
  • statutory obligations for Minister to consider recommendations made by relevant committee;
  • additional (non-statutory) Ministerial undertakings given in respect of the procedure to be used; and
  • that regulations be laid in first instance as a proposal or draft order.

In political terms, MPs are likely to be particularly concerned about the Henry VIII power under clause 9, which would authorise a Minister to make regulations to implement the withdrawal agreement. Many MPs will feel uncomfortable about granting such powers in the Bill in advance of the final terms being known, and when Parliament has been promised a vote on the final deal. Indeed, Conservative backbencher (and former Attorney General) Dominic Grieve MP recently suggested it was likely Parliament would seek to amend the Bill so that its further approval was required before this power could be used.

‘You’ve got to accentuate the positive, Eliminate the negative, Latch on to the affirmative, Don’t mess with Mister In-Between’ (Dr John, Accentuate the Positive)
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