APPENDIX 2: DEBATING NEGATIVE INSTRUMENTS
The Procedure Committee recently agreed a new procedure
for debating negative statutory instruments (SIs). This Appendix
reminds Members of the three options now available for debating
negative SIs.
Prayer motion (fatal)
A Member can table a "prayer" against a
negative SI. Under the standard negative procedure, the SI is
annulled if the prayer motion is agreed by the House within 40
days of the SI being laid. The 40-day clock stops running for
recesses of more than four days.
| Prayer
Title of SI Baroness X to move that a Humble Address be presented to Her Majesty praying that the [Regulations/Order], laid before the House on [date], be annulled (SI 2009/xxxx).
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The Government Chief Whip endeavours to find time
for any Member who tables a prayer in the "Motions relating
to delegated legislation" section of the House of Lords Business
document and contacts his office with fair notice before the expiry
of the 40-day period.
Critical motion (non-fatal)
A Member can table a motion criticising a negative
SI but not seeking to overturn it (i.e. a non-fatal motion). All
of the following are examples of critical, non-fatal, motions.
| Examples of critical non-fatal motions
"To move that this House regrets that the [instrument] does not ..."
"To move that this House calls on Her Majesty's Government to review ..."
"To move that this House calls on Her Majesty's Government to revoke the [instrument] because ..."
|
Take note motion
Until recently the usual way to secure a debate on
a negative SI was to table a prayer or critical motion, even if
the Member concerned had no desire to annul the SI. On 26 March
the House agreed a Procedure Committee proposal under which an
SI may be debated on a "take note" motion, to avoid
deterring Members who wish to debate an instrument without being
seen to criticise it. (Procedure Committee, 1st Report, paragraphs
4 to 12)
This may be particularly useful when the Merits Committee
has reported an SI as being of interest and worthy of further
debate; or if a Member has concerns about one particular element,
but does not wish to criticise the whole SI.
| Take note motion
Title of SI Lord X to move that this House takes note of the [instrument]. Zth Report from the Merits Committee
|
The Procedure Committee has indicated that these
neutral motions are particularly suitable for Grand Committee
(where the motion would be to "consider" the SI).
The Government Chief Whip has undertaken to treat
"take note" motions in the same way as prayers, and
will therefore endeavour to find time for any Member who tables
a take note motion in the "Motions relating to delegated
legislation" section of the House of Lords Business document
and contacts his office with fair notice before the expiry of
the 40-day period.
The Procedure Committee has noted that hostile motions,
such as prayers, will usually take precedence over take note motions;
and that the fact that an SI has been debated on a take note motion
will not preclude Members from subsequently tabling a prayer.
Format of debate
The format of debate for any of the three options
is usually:
- Member who tabled motion opens;
- other Members contribute;
- speeches from the Liberal Democrat and Opposition
front benches;
- Minister responds;
- Member who tabled motion closes, and moves or
withdraws motion
Context
The Joint Committee on Conventions of the UK Parliament
concluded in relation to SIs:
"that the House of Lords should not regularly
reject Statutory Instruments, but that in exceptional circumstances
it may be appropriate for it to do so"; and
"There are situations in which it is consistent
both with the Lords' role in Parliament as a revising chamber,
and with Parliament's role in relation to delegated legislation,
for the Lords to threaten to defeat an SI"(Session 2005-06,
HL Paper 265-i, paragraphs 227 and 229).
Further advice
Further advice on delegated legislation (SIs) can
be obtained from the Clerk of Delegated Legislation (Jake Vaughan,
tel. 020-7219 8821, e-mail: merits@parliament.uk).
Further advice on the tabling of motions can be obtained
from the Table Office (tel. 020-7219 3036; e-mail:
holtableoffice@parliament.uk).
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