Delegated Legislation and
10.01 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
10.02 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.
The House of Lords has only occasionally rejected delegated legislation.
The House has resolved "That this House affirms its unfettered
freedom to vote on any subordinate legislation submitted for its
Delegated legislation may be debated in Grand Committee, but must
return to the floor of the House if a formal decision is required.
Types of delegated legislation
10.03 Delegated legislation that comes before
the House consists mostly of statutory instruments.
The parent Act makes clear which procedures apply to the delegated
legislation made under its various provisions.
10.04 The most common forms of delegated legislation
which must be approved by resolutions of both Houses if they are
to come into force, or remain in force having been made, or which
may not be made except in response to an Address by each House
to Her Majesty;
instruments which are subject to annulment by a resolution of
either House, i.e. have effect unless specifically rejected;
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;
not laid before Parliament.
10.05 There are also certain "super-affirmative"
procedures, under which there is an opportunity for initial scrutiny
of a proposed instrument, before the instrument (possibly revised
by the government) is brought forward for approval. Examples include
certain legislative reform orders (paragraphs 10.29-31 and human
rights remedial orders (paragraphs 10.32-10.35).
10.06 Other types of delegated legislation include:
instruments (affirmative instruments which, if they were primary
legislation, would be subject to private business standing orders:
see paragraphs 10.36-10.43);
procedure orders (which are required where certain protected categories
of land, such as a common, open space or fuel or field garden
are subject to compulsory purchase: see paragraphs 10.44-10.45).
Scrutiny of delegated legislation
10.07 The Delegated Powers and Regulatory Reform
Committee examines the way in which bills delegate legislative
power, and also legislative reform orders (see paragraphs 11.48-11.50).
The Joint Committee on Statutory Instruments and the Merits of
Statutory Instruments Committee consider and report on delegated
legislation (see paragraph 11.55 and 11.58). The Joint Committee
on Human Rights examines proposed remedial orders (see paragraphs
10.08 Affirmative instruments require the express
approval of Parliament, or sometimes of the Commons only.
The affirmative procedure takes one of three forms, depending
on the parent Act. The first is by far the most common:
instrument may be 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;
instrument may be made and have immediate effect, but not continue
in force beyond a specified period
unless both Houses agree to the appropriate resolutions approving
instrument may be made by a minister and laid before Parliament
but it will have effect only after resolutions have been passed
10.09 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
Special considerations apply to certain categories of affirmative
instrument, such as those laid under the Legislative and Regulatory
Reform Act 2006 and hybrid instruments (see SO 72 and paragraphs
10.10 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 his behalf.
AMENDMENTS AND MOTIONS RELATING TO AFFIRMATIVE INSTRUMENTS
10.11 Opposition to or concern about an affirmative
instrument may be expressed in a number of ways (in addition to
speaking in the debate on the approval motion):
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;
may, by means of an amendment or a separate motion, call upon
the government to take specified action (but which will not, even
if agreed, prevent the approval of the instrument);
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.
10.12 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 divide on a motion or amendment concerning delegated legislation.
MOVING AFFIRMATIVE INSTRUMENTS EN BLOC
10.13 If several affirmative instruments are
closely enough related to justify being taken together, the motions
for resolutions or Addresses on them may be moved en bloc.
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.
Notice of a motion to take instruments en bloc is given
by means of an italic note reminding members of their right to
object to taking the instruments en bloc. The italic note
must appear in at least two issues of House of Lords Business.
AFFIRMATIVE INSTRUMENTS IN GRAND COMMITTEE
10.14 Affirmative instruments may be considered
in Grand Committee. Each instrument is referred on a motion moved
by the Leader of the House; once the debate has been held the
Grand Committee reports to the House that it has considered the
instruments; each instrument is then approved by the House on
another separate motion.
10.15 Motions to refer affirmative instruments
to a Grand Committee, and motions to approve affirmative instruments
after they have been debated in Grand Committee, are normally
taken en bloc in the House. The requirements for two sitting
days' notice and for the unanimous leave of the House apply as
for other en bloc motions.
10.16 Negative procedure is the most common form
of parliamentary control over delegated legislation. Such instruments
take effect either immediately or on a specified future day but
are subject to annulment in pursuance of a resolution of either
House adopted within a specified time limit. A resolution to reject
a negative instrument takes the form of a motion that "an
Humble Address" be presented to Her Majesty praying that
the instrument be annulled.
Since 1948 the period during which a negative resolution may be
moved ("praying time") has been 40 days in respect of
either the negative procedure for annulment or the negative procedure
for preventing further proceedings in the case of a draft instrument.
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
10.17 As with affirmative instruments, 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
NEGATIVE INSTRUMENTS IN GRAND COMMITTEE
10.18 Negative instruments may be considered
in Grand Committee. A 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.
Orders under the Legislative
and Regulatory Reform Act 2006
10.19 Under the Legislative and Regulatory Reform
Act 2006, ministers have wide-ranging powers to amend primary
legislation by order so as to remove or reduce burdens (under
section 1) or to promote regulatory principles (under section
2). The Act makes unique provision for determining the parliamentary
procedure for such orders.
10.20 A minister wishing to make an order under
the Act must first consult on his proposals. Then the minister
must lay a draft order before both Houses, with an explanatory
document. This must specify certain matters set out in section
14 of the Act. Also, under section 15, it must recommend which
of the following parliamentary procedures should apply:
(a) negative resolution
(b) affirmative resolution
(c) super-affirmative resolution
10.21 If the minister recommends negative resolution
procedure, then that applies unless, within 30 days
from the date when the draft order was laid, either House of Parliament
requires affirmative or super-affirmative resolution procedure,
in which case that applies. If the minister recommends affirmative
resolution procedure, then that applies unless, within 30 days,
either House requires super-affirmative resolution procedure,
in which case that applies. If the minister recommends super-affirmative
resolution procedure, then that applies.
10.22 A House may express a requirement under
section 15 in one of two ways. It may resolve that a certain procedure
shall apply. Or a scrutiny committee may recommend within the
30 days that a certain procedure shall apply, in which case this
is deemed to be the requirement of the House unless, within those
30 days, the House resolves otherwise.
10.23 The House of Lords has appointed the Delegated
Powers and Regulatory Reform Committee as the committee charged
with reporting on draft orders laid under the Act. The three forms
of procedure are defined in the Act as follows.
NEGATIVE RESOLUTION PROCEDURE (SECTION 16)
10.24 The minister may make the order unless,
within 40 days
from the date when the draft order was laid, either
(a) either House of Parliament resolves otherwise,
(b) a scrutiny committee of either House recommends
otherwise, between the end of the 30-day period and the end of
the 40-day period, and the House concerned does not reject the
recommendation, by resolution, in the same Session.
10.25 If (a) a scrutiny committee of either House
recommends against the order and (b) the House concerned rejects
the recommendation by resolution, the 40-day period is extended
for both Houses by the number of days between (a) and (b).
AFFIRMATIVE RESOLUTION PROCEDURE (SECTION 17)
10.26 The minister may make the order if, after
the expiry of 40 days from the date when the draft order was laid,
both Houses of Parliament resolve to approve the draft.
10.27 If however a scrutiny committee of either
House recommends, between the end of the 30-day period and the
end of the 40-day period, that the order should not proceed, then
it may not proceed unless the House concerned rejects the recommendation,
by resolution, in the same Session.
10.28 Again, if (a) a committee recommends against
the order and (b) the House rejects the recommendation, the 40-day
period is extended by the number of days between (a) and (b).
SUPER-AFFIRMATIVE RESOLUTION PROCEDURE (SECTION 18)
10.29 During a 60-day period
from the date when the draft order was laid, it is exposed for
scrutiny, and may be the subject of representations to the minister,
a resolution of either House, or a report of a scrutiny committee
of either House. The minister must have regard to any such representations,
resolution or report.
10.30 At the end of the 60-day period the minister
must decide what to do. If the minister decides to proceed with
the draft as laid, he must lay before Parliament a statement about
any representations made during the 60-day period. If he decides
to revise the draft, he must lay before Parliament a revised draft
order and a statement about the representations made and the revisions
proposed. In each case, the order then proceeds as a normal affirmative
10.31 If however a scrutiny committee of either
House recommends, between the laying of the statement (or the
revised draft and the statement) and the approval of the draft,
that the order should not proceed, then it may not proceed unless
the House concerned rejects the recommendation, by resolution,
in the same Session.
10.32 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.
10.33 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 include "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 must be approved by both Houses,
and may then be made.
10.34 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.
10.35 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 Standing Order 72, no motion to approve
such an order may be moved until the committee's report has been
laid before the House. In the case of a draft order, the committee
must report within 60 days of the laying of the draft. In the
case of an urgent order, the committee must report within 119
days of the making of the original order.
10.36 The House of Lords alone has a procedure
for considering hybrid instruments.
10.37 When the Chairman of Committees is of the
opinion that an affirmative instrument
is such that, apart from the provisions of the Act authorising
it to be made, it would require to be enacted by a private or
hybrid bill, he reports his opinion to the House and to the minister
or other person responsible for the instrument. An instrument
upon which such a Chairman's report has been made is known as
a hybrid instrument. Such instruments can be opposed in the House
of Lords by petitioning against them.
10.38 Any petition asking the House not to affirm
a hybrid instrument must be deposited with the Clerk of the Parliaments
within fourteen days following the day on which the Chairman's
report is laid before the House. If no petition is received within
this period the Chairman reports accordingly to the House. Any
petition received during the period is referred to the Hybrid
Instruments Committee (see paragraph 11.61) together with the
instrument petitioned against.
10.39 The Hybrid Instruments Committee, after
considering any representations made in writing by the parties
to the proceedings and after hearing, if it thinks fit, the parties
in person or by counsel or agents, decides whether any petitioner
has a locus standi. If so, the committee reports to the
House, in accordance with the criteria specified in private business
SO 216, whether there ought to be a further inquiry by a select
committee into all or any of the matters specified by the petitioner.
In such a case, the House may refer all or any of the matters
on which the committee has reported to a select committee consisting
of five members, appointed by the House on the proposal of the
Committee of Selection, with terms of reference specified by the
10.40 No motion to approve a hybrid instrument
may be moved until the proceedings under private business SO 216
have been completed,
that is until either:
(a) the Chairman of Committees has reported to
the House that no petitions have been received, or that all petitions
have been withdrawn; or
(b) the Hybrid Instruments Committee has reported
that no petitioner has a locus standi, or that there ought
not to be an inquiry by a select committee; or
(c) the House has decided not to refer any matter
to a select committee; or
(d) the select committee has reported to the
10.41 Where proceedings under private business
SO 216 have not been completed in respect of an instrument which
has expired or lapsed, a further instrument to substantially the
same effect may be substituted for the purposes of those proceedings.
EXPEDITED HYBRID INSTRUMENTS
10.42 A hybrid instrument which, by virtue of
the Act authorising it to be made, is, after the expiry of a period
prescribed by that Act, to proceed in Parliament as if its provisions
would, apart from that Act, require to be enacted by a public
bill that is not hybrid, is known as an expedited hybrid instrument.
The procedure for such an instrument differs from that applicable
to other hybrid instruments in several respects. A petition not
to affirm an expedited hybrid instrument must be deposited within
ten days following the day on which the instrument is laid. If
the Hybrid Instruments Committee is of the opinion that there
ought to be a further inquiry, it conducts that inquiry itself
10.43 No motion to approve an expedited hybrid
instrument may be moved until the proceedings under private business
SO 216A have been completed, that is until the Chairman of Committees
or the Hybrid Instruments Committee has reported, or the period
prescribed by the parent Act has expired.
Special procedure orders
10.44 The procedure for special procedure orders
is laid down by the Statutory Orders (Special Procedure) Act 1945,
as amended by the Statutory Orders (Special Procedure) Act 1965,
supplemented by the private business standing orders of both Houses.
That Act applies:
orders made under Acts passed before the Act of 1945 which are
specified in that Act, or to orders made under it;
orders made under Acts passed since the Act of 1945 which are
expressed in those Acts to be "subject to special parliamentary
LAYING OF ORDERS
10.45 An order subject to special parliamentary
procedure must be laid before Parliament.
No order may be laid until the requirements
of the enabling Act, or of Schedule 1 to the 1945 Act, as to notices,
consideration of objections and holding of inquiries have been
complied with; and notice must be published in The London Gazette
not less than three days before the order is laid. There must
be laid with it a certificate by the minister specifying the requirements
of the enabling Act and certifying that they have been complied
with or (so far as the 1945 Act permits) dispensed with.
may be presented against a special procedure order within a period
of 21 days, known as the "petitioning period", beginning
with the day on which the order is laid before Parliament or,
if the order is laid before the two Houses on different days,
with the later of the two days. If the petitioning period expires
on a Sunday, it is extended to the following Monday; if it expires
during a dissolution, prorogation or any period of 10 or more
consecutive days on which the House does not sit for public business,
it is extended to the day on which the House resumes.
10.47 There are two kinds of petition against
a special procedure order:
petition calling for amendments to the order, which must specify
the proposed amendments (a "petition for amendment");
general petition against the order, which must be presented separately
(a "petition of general objection.").
stating technical objections to petitions may be deposited in
the office of the Clerk of the Parliaments within seven days beginning
with the day on which the petition was presented.
10.49 After the petitioning period has expired,
the Chairman of Committees and the Chairman of Ways and Means
in the House of Commons consider all petitions and report to both
Houses. If a petition complies with the Act and standing orders,
they certify that it is proper to be received and whether it is
a petition for amendment or a petition of general objection. If
a petition for amendment
involves amendments which would alter the scope of the order or
affect the interests of persons other than the petitioner, the
Chairmen may make a special report to that effect. If a petition
for amendment involves amendments "which would constitute
a negative of the main purpose of the order", the Chairmen
certify it as a petition of general objection. But if only some
of the amendments would defeat the main purpose of the order,
the Chairmen may delete those amendments and certify the rest
of the petition as a petition for amendment. In certain cases
the Chairmen may find it necessary to hear the parties.
10.50 Within 14 days,
beginning with the day on which the Chairmen's report is laid
before Parliament, counter-petitions may be presented against
petitions for amendment.
RESOLUTION FOR ANNULMENT
10.51 If either House within 21 days
beginning with the day on which the Chairmen's report on an order
is laid before it (the "resolution period") resolves
that the order be annulled, the order lapses. In reckoning the
resolution period, time during which Parliament is dissolved or
prorogued, or both Houses are adjourned for more than four days,
is not counted.
10.52 If there is an equality of votes on a resolution
for annulment, the resolution is defeated and the order proceeds.
10.53 If no resolution for annulment is passed,
any certified petition is referred to a joint committee, except
that a petition of general objection is not referred if either
House has resolved within the resolution period that it should
not be. Any special report of the two Chairmen, and any counter-petitions,
are also referred to the committee.
10.54 If no petition is referred to a joint committee
at the end of the resolution period, and no resolution for annulment
has been passed, the order may come into operation.
10.55 Joint committees under the 1945 Act consist
of three members of each House, and private business SO 209 governs
their proceedings. Where a petition is for amendment,
the committee may report the order with or without amendments
to give effect to the petition in whole or in part. Where the
petition is of general objection, the committee may report the
order with or without amendments, or report that the order be
not approved. The report of the joint committee is laid before
both Houses. Where the order is reported without amendment,
it may come into operation from the date when the report of the
committee is laid before Parliament.
10.56 Where the order is reported with amendments,
the minister may bring the order as amended into operation on
a date of his choice, or withdraw the order, or bring it to Parliament
for further consideration by means of a bill for its confirmation.
10.57 Where the committee reports that the order
be not approved, the order does not take effect unless confirmed
by Act of Parliament.
10.58 A confirming bill presented in respect
of an order reported with amendments is a public bill and sets
out the order as amended.
It is treated as if the amendments had been made in committee
in the House in which it is presented, and in the second House
likewise it proceeds straight to consideration on report.
A bill presented in respect of an order which the committee has
reported be not approved goes through the same procedure, unless
a petition for amendment was certified but was not dealt with
by the joint committee. In that case the confirming bill has a
first and second reading, and is referred to that committee for
the purpose of considering that petition. Report and third reading
follow. In the second House the bill proceeds straight to consideration
ORDERS RELATING TO SCOTLAND
10.59 In the case of orders which do not deal
with matters within the legislative competence of the Scottish
Parliament but which relate exclusively to Scotland, a preliminary
inquiry into objections is held in Scotland by Commissioners in
accordance with the Private Legislation Procedure (Scotland) Act
1936. If the minister concerned accepts the Commissioners' recommendations,
the order is laid before Parliament and the subsequent proceedings
are as already described, except that no petition, whether for
amendment or of general objection, is referred to a joint committee
unless either House so orders within the resolution period. If
the minister is not prepared to accept the Commissioners' recommendations,
he may, instead of laying the order before Parliament, introduce
a bill for the confirmation of the order. The procedure on such
a bill is the same as for a bill under section 9 of the 1936 Act.
Northern Ireland Assembly legislation
10.60 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.
10.61 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 he
has 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 he 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.
10.62 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 6.47) are
dispensed with for these motions on Northern Ireland Assembly
10.63 Procedure on these motions is as follows:
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;
within the 20 days a member of the House tables a motion to oppose
the bill or Act, the motion is printed in House of Lords Business;
to the motion may be added in the Table Office or the Public Bill
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
signature is required, either on a copy of the motion, or on a
note clearly indicating the Lord's wish to be associated with
the motion. Fax, e-mail and telephone are not acceptable;
master copy of the motion, with a consolidated list of signatures,
is kept in the Table Office, and is open for inspection;
Lord may withdraw his signature at any time, by giving written
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 day and debated in the usual way. When the motion
is put down for a day, only the name of the person who originally
tabled the motion appears on the order paper as the person 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
CHALLENGING EU LEGISLATION ON GROUNDS OF SUBSIDIARITY
10.64 The work of the European Union Committee
is summarised below (see paragraph 11.52). In addition to the
normal scrutiny work of the Committee, the House itself possesses
certain powers in respect of proposed or recently adopted European
legislation, by virtue of amendments to the Protocol on the application
of the principles of subsidiarity and proportionality ("the
Protocol") which came into force on 1 December 2009:
House may challenge draft European Union proposals on the grounds
of subsidiarity, by adopting a "reasoned opinion" to
that effect within eight weeks of the proposal's transmission
to national parliaments. Any such reasoned opinion is then forwarded
to the Presidents of the European Union institutions; if enough
opinions are submitted by national parliaments or chambers of
national parliaments, the institutions are required to respond
in the terms set out in the Protocol.
House may, within two months and ten days of the adoption of a
European Union legislative act, agree a resolution to the effect
that the act breaches the principle of subsidiarity, and calling
upon the Government to bring an action on these grounds before
the European Court of Justice. The Government has made a commitment,
in the event of such a resolution being passed, to bring such
an action on behalf of the House.
10.65 In either case, it is normal practice that
the House's consideration of such a resolution would follow the
publication of a report by the European Union Committee, and that
the Committee's report and the resolution would be debated together.
However, it would remain open to any Member to table a free-standing
motion for resolution, containing a short, self-contained "reasoned
opinion", as required by the Protocol.
10.66 The Government have made a commitment that
they will not support a proposal in the Council of Ministers which
has been the subject of a reasoned opinion from either House without
first communicating to Parliament their reasons for doing so.
10.67 A "passerelle" clause is a European
treaty provision which allows the Members States of the European
Union to decide, by unanimity, to change the way in which decisions
are taken within a specified policy areafor instance, to
move from a requirement for unanimity to qualified majority voting.
10.68 Under section 6 of the European Union (Amendment)
Act 2008, the approval of both Houses is required before the Government
may support the use of one of the passerelle clauses. Under the
Act, approval is only given if "each House agrees to the
motion without amendment".
10.69 If any Member intends to oppose a Government
motion seeking such approval, he should give notice by tabling
an amendment in the following form: "Lord [name] to move,
as an amendment to the above motion, to leave out 'approve' and
insert 'declines to approve'". No other type of amendment
SCRUTINY OF UNITED KINGDOM "OPT-INS"
10.70 During passage of the European Union (Amendment)
Act 2008, the Government gave an undertaking
that they would take account of the views of the EU Committees
of the two Houses before exercising their right, under the Protocol
on the position of the United Kingdom and Ireland in respect of
the Area of Freedom, Security and Justice, to notify the Council
of Ministers of their decision to take part in the adoption and
application of proposals within that area. Without the exercise
of such an "opt-in" such proposals are not binding upon
the United Kingdom.
10.71 The Government's undertaking applies only
if the views of the EU Committee are forthcoming within eight
weeks of publication of the proposal. If, within this time-limit,
the EU Committee makes a report to the House on the proposal,
recommending the report for debate, the Government will seek to
arrange a debate through the Usual Channels. The debate takes
place on a motion, tabled in the name of either the Chairman or
a Member of the Committee, that the House agrees the recommendation
of the Committee that the Government should or, as the case may
be, should not exercise their right to opt in to the proposal.
The motion is amendable and may be divided upon.
NATIONAL POLICY STATEMENTS
10.72 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 his response to the resolution
or recommendations. Following completion of parliamentary scrutiny,
the Secretary of State may formally designate the proposal as
a NPS. The final NPS is also laid before Parliament.
10.73 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
above. 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.
SCRUTINY OF TREATIES
10.74 No treaty
may be ratified unless the minister responsible has:
a copy before Parliament;
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.
10.75 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.
10.76 If the Lords pass 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
10.77 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.
10.78 In laying a treaty before Parliament, the
minister shall accompany the treaty with an explanatory memorandum
explaining the provisions of the treaty, the reasons for seeking
its ratification, and such other matters as the minister considers
10.79 For the purposes of these provisions, a
sitting day is a day when both Houses are sitting.
429 Except in the very small number of cases where
the parent act specifically provides for such amendment, e.g.
Census Act 1920 s. 1(2), Civil Contingencies Act 2004 s. 27(3). Back
The last three 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; and 28 March 2007: Gambling (Geographical
Distribution of Casino Premises Licences) Order 2007. A motion
for an address praying against a negative instrument (Greater
London Authority Elections Rules 2000) was agreed to on 22 February
LJ (1993-94) 683, HL Deb. 20 October 1994 cols 356-83. Back
Procedure 3rd Rpt 2003-04, 1st Rpt 2008-09. Back
The Statutory Instruments Act 1946 defines the main categories
of statutory instrument. Other kinds of delegated legislation
include codes of practice and conduct. Back
SO 72. Back
See Acquisition of Land Act 1981, s. 19(1). Back
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. Back
In some cases one or both Houses must present Addresses to the
Crown praying that the Order be made. Back
Stated in the parent Act and usually 28 days in duration. Back
SO 72. The House has agreed from time to time to dispense with
the standing order, e.g. 1 & 14 July 1999. Back
Procedure 1st Rpt 1990-91. Back
Procedure 2nd Rpt 1970-71. Back
Procedure 3rd Rpt 1971-72. Back
Procedure 1st Rpt 2005-06. Back
The procedure is set out in the Statutory Instruments Act 1946. Back
See paragraph Error! Reference source not found.. Back
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. Back
Not counting dissolution, prorogation, or adjournment of either
House for more than four days. Back
Not counting dissolution, prorogation, or adjournment of either
House for more than four days. Back
Not counting dissolution, prorogation, or adjournment of either
House for more than four days. Back
Procedure 3rd Rpt 1999-2000. Back
For this purpose, an affirmative instrument is as defined in SO
72, but excludes orders under s. 1 of the Manoeuvres Act
1958 and certain instruments exempted from this procedure by their
parent Act. Back
PBSO 216. Back
SO 72. Back
PBSO 216A. Back
s. 8. Back
s. 1. Back
s. 1. Back
s. 2. Back
s. 3; PBSOs 206, 201, 201A. Back
PBSO 207. Back
PBSO 207A. Back
PBSO 210. Back
s. 4. Back
s. 5. Back
s. 6. Back
PBSO 214. Back
s. 6(4). Back
s. 6(5). Back
s. 10. Back
Procedure 4th Rpt 1999-2000. Back
Procedure 2nd Rpt 2009-10. Back
9 June 2008. See European Union Committee 2nd Report 2008-09,
appendix 1. Back
Planning Act 2008 s. 9 and s. 5. Back
Procedure 2nd Rpt 2008-09. Back
See Constitutional Reform and Governance Act 2010, ss 20-25. Back
This procedure does not apply to (i) treaties covered by the
European Parliamentary Elections Act 2002 and European Union (Amendment)
Act 2008; (ii) double taxation conventions and arrangements and
international tax enforcement arrangements; and (iii) treaties
concluded under authority given by the UK Government by any of
the Channel Islands, the Isle of Man or any of the Overseas Territories. Back