European Union (Withdrawal) Bill — Schedule 7 — Part I — Scrutiny of Powers of Ministers — 12 Jun 2018 at 16:15

The majority of MPs voted against giving more powers to Parliament, and in particular to committees of the House of Commons and House of Lords, in connection with the scrutiny of Ministers' use of powers relating to the withdrawal of the United Kingdom from the European Union. The amendment rejected in this Bill sought to apply stronger scrutiny procedures to the making of regulations for: "Dealing with deficiencies arising from withdrawal", "Complying with international obligations", "Implementing the withdrawal agreement" and "Consequential and transitional provision".

Passing this motion would have left the Bill internally inconsistent in terms of the procedure for scrutinising regulations made for the purposes of "Complying with international obligations" and "Implementing the withdrawal agreement" however a Lords amendment to delete the other provisions in the Bill relating to such regulations was put to a subsequent vote. Accepting the Lords amendment in the subsequent vote would have removed the inconsistency introduced.

MPs were considering the European Union (Withdrawal) Bill^[1].

The motion supported by the majority of MPs in this vote was:

• That this House disagrees with Lords amendment 110.

Lords amendment 110^[2] stated:

• Page 44, line 35, leave out from beginning to end of line 20 on page 45 and insert—
• “Parliamentary committees to sift regulations made under section 7, 8, 9 or 17
• 3 (1) This paragraph applies if a Minister of the Crown—
• (a) proposes to make a statutory instrument, whether under this Act or any other Act of Parliament, to which paragraph 1(3), 6(3), 7(3), or 11 applies or which has the same purpose as an instrument to which those paragraphs apply, and
• (b) is of the opinion that the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (“the negative procedure”).
• (2) Before making the instrument, the Minister must lay before both Houses of Parliament a draft of the instrument together with a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the negative procedure.
• (3) The negative procedure applies unless within the relevant period either House of Parliament requires the affirmative procedure to apply, in which case the affirmative procedure applies.
• (4) A House of Parliament is taken to have required the affirmative procedure to apply within the relevant period if—
• (a) a committee of the House charged with reporting on the instrument has recommended, within the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply, and
• (b) that House has not by resolution rejected the recommendation within a period of 5 sitting days beginning with the first sitting day after the day on which the recommendation is made, or
• (c) irrespective of the committee reporting on the instrument, that House has resolved, within the period of 15 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply to the instrument.
• (5) For the purposes of this paragraph—
• (a) where an instrument is subject to the affirmative procedure, it may not be made unless the draft of the instrument laid under sub-paragraph (2) has been approved by a resolution of each House of Parliament,
• (b) “sitting day” means, in respect of either House, a day on which that House sits.
• (6) Nothing in this paragraph prevents a Minister of the Crown from deciding, at any time before a statutory instrument mentioned in sub-paragraph (1)(a) is made, that another procedure should apply in relation to the instrument.”

Sections 7,8, 9 and 17 of the Bill refer to HL Bill 79 and relate to "Dealing with deficiencies arising from withdrawal", "Complying with international obligations", "Implementing the withdrawal agreement" and "Consequential and transitional provision" respectively.

The rejected amendment sought to remove paragraph 3 of Schedule 7 Part 1 of the Bill, the version pointed to by the Lords amendment stated^[3]:

• Parliamentary committee to sift certain regulations involving Minister of the Crown
• 3
• (1) Sub-paragraph (2) applies if a Minister of the Crown who is to make a statutory instrument to which paragraph 1(3) applies is of the opinion that the appropriate procedure for the instrument is for it to be subject to annulment in pursuance of a resolution of either House of Parliament.
• (2) The Minister may not make the instrument so that it is subject to that procedure unless—
• (a) condition 1 is met, and
• (b) either condition 2 or 3 is met.
• (3) Condition 1 is that a Minister of the Crown—
• (a) has made a statement in writing to the effect that in the Minister’s opinion the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament, and
• (b) has laid before the House of Commons—
• (i) a draft of the instrument, and
• (ii) a memorandum setting out the statement and the reasons for the Minister’s opinion.
• (4) Condition 2 is that a committee of the House of Commons charged with doing so has made a recommendation as to the appropriate procedure for the instrument.
• (5) Condition 3 is that the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House of Commons as mentioned in sub-paragraph (3) has ended without any recommendation being made as mentioned in sub-paragraph (4).
• (6) In sub-paragraph (5) “sitting day” means a day on which the House of Commons sits.
• (7) Nothing in this paragraph prevents a Minister of the Crown from deciding at any time before a statutory instrument to which paragraph 1(3) applies is made that another procedure should apply in relation to the instrument (whether under paragraph 1(3) or 4).
• (8) Section 6(1) of the Statutory Instruments Act 1946 (alternative procedure for certain instruments laid in draft before Parliament) does not apply in relation to any statutory instrument to which this paragraph applies.

that paragraph related only to regulations made for the purpose of "Dealing with deficiencies arising from withdrawal".

Explanatory notes to the paragraph in question in the Bill stated^[4]:

• Instruments to be made under the negative resolution procedure must (unless the Minister makes a declaration of urgency (see paragraph 4(8) of Schedule 7)) first be laid in draft before a committee of the House of Commons for sifting (see paragraph 3 of Schedule 7).

and

• Paragraph 3 requires, before instruments under clause 7(1) being proposed for the negative procedure may be made, that the minister lays a draft of the instrument before a Committee of the House of Commons, along with a memorandum explaining the choice of procedure. This committee has 10 sitting days to make a recommendation as to the appropriate procedure for the instrument. After receiving the recommendation, or after 10 sitting days without a recommendation, a Minister may either proceed with making a negative instrument, or proceed with an affirmative instrument instead. The minister may proceed with the instrument at a later date.

Explanatory notes to Lords amendment 110^[5] stated:

• Lords Amendment 110 would provide for an alternative sifting process. It would require that all statutory instruments made under the correcting, withdrawal agreement and consequential powers – as well as negative instruments made under other Acts that have the same purpose – which the Minister proposes to make under the negative procedure, are to be laid in draft before both Houses of Parliament. They must also be accompanied by a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the negative procedure.
• A committee of each house would then have 10 sitting days to make a recommendation for the affirmative procedure to apply instead. If one or both committees made that recommendation, it would be binding on the Government, unless it was overruled by the House within a further a period of 5 sitting days. Each House also has a 15 day period in which it may also resolve that the affirmative procedure must apply to an instrument, irrespective of the committee making any recommendation.

Parliament's glossary states^[6]:

• Negative procedure is a type of procedure that a statutory instrument can go through. A statutory instrument under the negative procedure will automatically become law without debate unless there is an objection from either House. Conversely affirmative procedure refers to a procedure where a statutory instrument must be approved by both the House of Commons and the House of Lords to become law.

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• [1] Parliament's webpage on the European Union (Withdrawal) Bill
• [2] Page of amendment sheet containing Lords amendment 110
• [3] Schedule 7 of the version of the European Union (Withdrawal) Bill referred to in the Lords amendment which was the subject of this vote
• [4] Page of Explanatory notes to the Bill covering Schedule 7, Paragraph 3, which was the subject of this vote
• [5] Page of Explanatory notes to Lords Amendments covering amendment 110
• [6] Parliament's Glossary entry for "Negative procedure"

Debate in Parliament |