European Union (Withdrawal) Act 2018

Part 1: Scrutiny of power to deal with deficiencies

290. Paragraphs 1, 2 and 5 set out the three parliamentary scrutiny procedures by which regulations can be made under the power to deal with deficiencies arising from withdrawal in section 8(1) and the circumstances in which each will apply. The main procedures are the draft affirmative (generally referred to as the affirmative), the negative (subject to a sifting procedure, except in urgent cases) and, for urgent cases, the made affirmative.
291. Draft affirmative resolution procedure (paragraph 1(1) of Schedule 7): These instruments cannot be made unless a draft has been laid before and approved by both Houses.
292. Negative resolution procedure (paragraph 1(3) of Schedule 7): These instruments become law when they are made (they may come into force on a later date) and remain law unless there is an objection from either House. The instrument is laid after making, subject to annulment if a motion to annul (known as a ‘prayer’) is passed within forty days.
293. Instruments to be made under the negative resolution procedure must (unless the Minister makes a declaration of urgency (see paragraph 5(8) of Schedule 7)) first be laid in draft before each House of Parliament for sifting (see paragraph 3 of Schedule 7).
294. Made affirmative resolution procedure (paragraph 5 of Schedule 7): These instruments can be made and come into force before they are debated, but cannot remain in force unless approved by both Houses within 28 days. The Government believes that the exceptional circumstances of withdrawing from the EU might necessitate the use of the made affirmative procedure so the Act allows for this as a contingency.

Scrutiny of regulations made by Minister of the Crown or devolved authority acting alone

295. Paragraph 1 provides that the affirmative must be used if an instrument made under section 8(1) does one or more of the things listed at sub-paragraph (2):
     • transfers an EU legislative function (i.e. a power to make delegated or implementing acts) to a UK body,
     • relates to fees,
     • creates or widens the scope of a criminal offence (although the power cannot be used to create certain criminal offences), or
     • creates or amends a power to legislate (this does not include repealing or revoking.
296. Sub-paragraph (3) provides that the negative procedure can be used in other cases, though, as sub-paragraph (4) flags, that is subject to the "sifting" procedure at paragraph 3 for ministers of the Crown.
297. Sub-paragraph (5) provides that the affirmative procedure must be used if an instrument is made under section 8(3)(b) (the power to provide for additional types of deficiencies).
298. Sub-paragraphs (6) to (11) provide for equivalent affirmative and negative procedures in each of the devolved legislatures, and flag, in sub-paragraph (10), that Welsh Statutory Instruments under the negative procedure are subject to the "sifting" procedure at paragraph 4 for the Welsh Ministers.

Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly

299. Paragraph 2 deals with scrutiny by the UK Parliament and the devolved legislatures for instruments made jointly by a Minister of the Crown and a devolved authority.

Parliamentary committee to sift certain deficiencies regulations of a Minister of the Crown

300. Paragraph 3 requires, before instruments under section 8(1) being proposed for the negative procedure may be made, that the minister lays a draft of the instrument before both Houses of Parliament, along with a memorandum explaining the choice of procedure. This committee has 10 sitting days (beginning on the first day both Houses are sitting, and where Commons sitting days are different to Lords sitting days, whichever period ends later) 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. In either circumstance, the minister need not proceed immediately, but may proceed with the instrument at a later date. If the Minister disagrees with a recommendation of a committee for the affirmative procedure, they will be required to make a statement in writing explaining why they disagree before they can proceed with the negative procedure.

Committee of the National Assembly for Wales to sift certain regulation involving Welsh Ministers

301. Paragraph 4 provides for a committee, similar to that provided for in paragraph 3, in the National Assembly for Wales to sift Welsh statutory instruments under Part 1 of Schedule 2 that are proposed for the negative procedure before the National Assembly for Wales by the Welsh Ministers.
302. There is no concept of ‘sitting days’ for the National Assembly for Wales and so instead of 10 sitting days, this committee in the National Assembly for Wales will have a period of 14 days to make a recommendation to the Welsh Ministers.
303. The requirement to make statements where a Minister disagrees with the recommendation of a sifting committee does not apply to the Welsh Ministers in relation to the recommendations of the National Assembly for Wales’ sifting committee in paragraph 4.

Scrutiny procedure in certain urgent deficiencies cases

304. Paragraph 5 allows the made affirmative procedure to be used instead of the draft affirmative, for regulations under section 8 made by a minister of the Crown in urgent cases.
305. Paragraph 5(8) enables Ministers to make negative regulations without going through the procedure at paragraph 3 in urgent cases (in cases which do not trigger the affirmative procedure). Urgent cases could include, for example, where a statutory instrument needs to come into force because of a lead-in time required to allow systems to be changed or put in place before exit or, where, due to the progress of negotiations, statutory instruments are made close to exit day.

Scrutiny procedure in certain urgent deficiencies cases: devolved authorities

306. Paragraphs 6, 7 and 8 provide for an equivalent ‘urgent’ procedure to that set out in paragraph 5 for regulations laid before each of devolved legislatures.