Part 2: Scrutiny of other powers under Act
Power to enable challenges to validity of retained EU law
- Paragraph 9 provides that the affirmative (or made affirmative, see paragraph 19 of Schedule 7) procedure must be used for an instrument under paragraph 1(2)(b) of Schedule 1 (the power to enable challenges to retained EU law, based on validity).
- Paragraph 10 sets out the scrutiny procedures that apply to secondary legislation made under the power to implement the withdrawal agreement in section 9 which mirror, as appropriate, the scrutiny procedures for the power to deal with deficiencies.
- Paragraph 11 provides that the affirmative procedure must be used for an instrument under section 12(9) (power to repeal provisions relating to retained EU law restrictions).
- Paragraph 12 sets out the scrutiny procedures that apply to secondary legislation made under the powers in connection with fees and charges in Schedule 4.
- Sub-paragraphs (1) and (2) provide that the draft affirmative procedure (or the made affirmative, see paragraph 19 of Schedule 7) must be used for all regulations made under Schedule 4 by a Minister of the Crown, except for changing the amounts of fees or charges in response to inflation. For regulations relating to changes in the value of money the minister may choose the negative or affirmative procedure.
- Sub-paragraph (3) makes the same provision for regulations made under Schedule 4 by a devolved authority. The affirmative procedure as set out in paragraphs 1(6), 1(8), and 1(11) (or the made affirmative, see paragraphs 6, 7 and 8 of Schedule 7) must be used for all regulations made under Schedule 4 by devolved authorities, except for changing the amounts of fees or charges in response to changes in the value of money. For regulations relating to changes in the value of money the devolved authority may choose the negative procedure (as set out in paragraphs 1(7), 1(9), and 1(12)) or the affirmative procedure and, as with the Minister of the Crown power, negative procedure instruments are not subject to any ‘sifting’ procedure.
- Paragraph 13 provides that regulations under the power in Schedule 5 to make provision about judicial notice and admissibility are subject to the affirmative procedure.
- Paragraph 14 provides that the affirmative procedure must be used for regulations made under the power in section 20 to change the definition of "exit day".
- Paragraph 15 provides that regulations under the power to make consequential provision at section 23(1) may be subject to either the negative or affirmative procedure. If they are proposed for the negative procedure they are subject to sifting as set out in paragraph 17 of Schedule 7.
- Paragraph 16 provides that regulations under the power to make transitional, transitory or savings provision at section 23(6) may be subject to either the negative, affirmative or no procedure.
- Paragraph 17 requires, before instruments under sections 8(1), 9 or section 23(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. 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.
- Paragraph 18 applies the National Assembly for Wales’ sifting committee process under paragraph 4 to the powers in Part 2 of Schedule 2 with certain adaptations.
- Paragraph 19(1) to (6) allows the made affirmative procedure to be used for regulations made by a Minister of the Crown under the power in part 1 of Schedule 5 to enable challenges to validity of retained EU law, the power in section 9 to implement the withdrawal agreement, the power in section 23(1) to make consequential provision and the powers in Schedule 4 to provide for fees or charges, in urgent cases. The urgent procedure is subject to the statement requirements in paragraph 34 of Schedule 7.
- Paragraph 19(7) and (8) enables Ministers to make negative regulations under the power in section 9 to implement the withdrawal agreement, the power in section 23(1) to make consequential provision without going through the sifting procedure at paragraph 17 in urgent cases. 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.
Power to implement withdrawal agreement
Power to repeal provisions relating to retained EU law restrictions
Powers in connection with fees and charges
Power to make provision about judicial notice and admissibility
Power to amend the definition of "exit day"
Power to make consequential provision
Power to make transitional, transitory or saving provision
Parliamentary committee to sift certain implementation or consequential regulations of a Minister of the Crown
Committee of the National Assembly for Wales to sift certain implementation regulations of Welsh Ministers
Scrutiny procedure for certain powers to which this Part applies in urgent cases
