European Union (Future Relationship) Act 2020

Schedule 5: Regulation made under this Act

351. Schedule 5 sets out the parliamentary scrutiny procedures by which regulations can be made under the powers contained in the Act. The main procedures are the draft affirmative (generally referred to as the affirmative), the negative (subject to a sifting procedure, in certain cases) and, for urgent cases, the made affirmative.
     1. Draft affirmative resolution procedure: these instruments cannot be made unless a draft has been laid before and approved by both Houses.
     2. Negative resolution procedure: 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, and subject to annulment if a motion to annul (known as a ‘prayer’) is passed within forty days.
     3. Made affirmative resolution procedure: 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 28 day time limit for approval does not include time when Parliament is dissolved, prorogued or adjourned for more than 4 days. The Government believes that the time frames surrounding the Bill’s passage might necessitate the use of the made affirmative procedure so the Act allows for this as a contingency.

Criminal Record

352. Paragraph 1 covers the procedure to be used in regulations made under the power in section 6(3) to change the definition of criminal records database. Sub-paragraph (1) states that the negative procedure should apply to regulations made by the Secretary of State.
353. Sub-paragraphs (2) and (3) provide for equivalent procedures for regulations made by Scottish ministers and the Department of Justice of Northern Ireland, respectively.

Passenger name record data

354. Paragraph 2 provides that any regulations made under the power in paragraph 18 of Schedule 2 to amend PNR regulations for sea and rail travel are subject to the draft affirmative procedure.

Administrative co-operation on VAT and mutual assistance on tax debts

355. Paragraph 3 provides that any regulations made under the power in section 22(7) to redefine "the relevant time" for the purposes of that section are subject to the draft affirmative procedure.

Implementation power: before IP completion day

356. In relation to the implementation power section 31 different procedures apply depending on whether it is being used before the end of the implementation period, or after. Paragraphs 4 and 5 deal with uses of the power before IP completion day and paragraphs 6 and 7 deal with uses on or after IP completion day.
357. Paragraph 4, sub-paragraph (1) sets out that where the implementation power is used by a Minister of the Crown acting alone, and the power is used before the end of the transition period, then the draft affirmative procedure must be used.
358. Sub-paragraphs (2) - (4) makes equivalent provisions for each devolved authority.
359. Sub-paragraph (5) cross-refers to the urgency procedures in paragraphs 14 - 17 which are described below and can, in suitable circumstances, be used instead of following the draft affirmative procedure.
360. Paragraph 5 covers scrutiny by the UK Parliament and the devolved legislatures for instruments made jointly by a Minister of the Crown and a devolved authority, under section 31, before the end of the implementation period. In these cases the regulations will need to follow the draft affirmative procedure in Parliament and the equivalent procedure in the relevant devolved legislature.

Implementation power: on or after IP completion day

361. Paragraph 6 provides the procedures to be followed where regulations are being made by a Minister of the Crown or a DA acting alone after IP completion day. Where any of the conditions in sub-paragraph (2) are met, then the draft affirmative procedure must be followed (or in the case of regulations made by a DA, the equivalent procedure in the devolved legislature). There is however an exception to this in the urgency procedures in paragraphs 14 to 17 which are described below and can, in suitable circumstances, be used instead of following the draft affirmative procedure.
362. The conditions set out in sub-paragraph (2) cover any regulations made under this power that either amend, repeal or revoke primary legislation, or do the same to retained direct principal EU legislation, or create a power to legislate. The concept of retained direct principal EU legislation comes from section 7(6) of the European Union (Withdrawal Act) 2018 and essentially covers EU regulations that are not EU tertiary legislation and that will be brought into UK law at the end of the IP.
363. Any regulations not falling within the conditions set out in sub-paragraph (2), may (instead of the affirmative procedure) follow the negative procedure or, where applicable, the devolved equivalent. Some negative instruments planned to be made under the implementation power will however be subject to the sifting procedures described below in paragraphs 8 and 9 that apply in Parliament and Senedd Cymru respectively.
364. Paragraph 7 covers any regulations made on or after the end of the transition period, under the implementation power, by a minister acting jointly with a devolved authority. The conditions in paragraph 6(2) described above also apply to determine whether instruments made jointly with a DA should follow the draft affirmative procedure (and the equivalent procedure in the devolved legislature) or the negative procedure (and the devolved legislature’s equivalent procedure should be followed instead).

Sifting – regulations to be made by a Minister of the Crown

365. Paragraph 8 applies to regulations to be made by a Minister of the Crown under section 31, within two years from IP completion day, where it is proposed that those regulations should be made under the negative procedure.
366. In these cases the Minister must (a) make a statement in writing setting out that in their opinion the negative procedure is appropriate and (b) lay a copy of that statement and the reasons for it, along with a draft of the instrument, before Parliament. The Minister may not then make the negative instrument until either of the relevant Parliamentary committees have made a recommendation on the appropriate procedure for an instrument, or the relevant time period for them doing so has expired. Sub-paragraph (10) sets out the definition of "the relevant period" for these purposes.
367. Where either committee recommends that the affirmative procedure is followed the instrument must either (a) be made following an affirmative procedure or (b) the Minister must make a statement explaining why they disagree with the committee’s recommendations prior to making the instrument by the negative procedure.
368. There is an exception to following the sifting procedure that can be used in certain urgent cases contained in paragraph 14(8) of the Schedule (as described below).

Sifting - regulations to be made by a Welsh Minister

369. Paragraph 9 applies to regulations which a Welsh Minister proposes to make under the general implementation power following the negative procedure, within two years from the end of the implementation period. It provides for a similar sifting procedure to that in paragraph 9 described above - but with minor adaptations to reflect the procedures of Senedd Cymru.

Powers relating to the start of agreements

370. Paragraph 10 sets out the procedure for regulations made by a Minister of the Crown or a DA acting alone under the powers in section 32 relating to the start of agreements. These regulations must be made by the draft affirmative procedure (or the equivalent procedure in the devolved legislature where the regulations are made by a DA). This is subject to an exception where the urgency procedures in paragraphs 14 to 17 (described below) are used.
371. Paragraph 11 sets out the procedure where regulations are made by a Minister of the Crown and a DA acting jointly under the powers in section 32 - in these cases the regulations must follow the draft affirmative procedure in Parliament and the equivalent procedure in the relevant devolved legislature.

Powers relating to the functioning of agreements

372. Paragraph 12 sets out the procedure for regulations made by a Minister of the Crown or a DA acting alone under the powers in section 33.
373. For any regulations under this power that amend primary legislation or retained direct principal EU legislation the affirmative procedure (or where applicable the equivalent procedure within a devolved legislature) must be used. This is subject to an exception where the urgency procedures in paragraphs 14 to 17 (described below) are used. Otherwise the negative procedure (or where applicable the equivalent procedure in the devolved legislature) must be used.
374. Paragraph 13 sets out the procedure for regulations made by a Minister of the Crown and a DA acting jointly under the powers in section 33. The same triggers for the affirmative procedure as are in paragraph 12 apply here - where primary legislation or retained direct principal EU legislation is amended then the affirmative procedure and the equivalent procedure in the devolved legislature must be followed. Otherwise the negative procedure and the equivalent procedure in the relevant devolved legislature must be followed.

Implementation and other powers: certain urgent cases

375. Paragraph 14(1) to 14(6) covers cases where a Minister of the Crown is making regulations under section 31 - the implementation power, section 32 - powers relating to the start of agreements or section 33 - powers relating to functioning of agreements, where those regulations would normally have to be made under the draft affirmative procedure.
376. In urgent cases this paragraph provides the option for the regulations to be made by the made affirmative procedure rather than the draft affirmative procedure. When this made affirmative route is followed the Minister is required by subparagraph (2) to make a declaration that in their view it is necessary by reason of urgency to do so.
377. Sub-paragraph (8) provides an exemption from the sifting procedures described above in urgent cases. Where this exemption is used the Minister is required to make a statement that by reason of urgency it is necessary to proceed without going through the normal sifting procedures.
378. Paragraphs 15, 16 and 17 provide for equivalent urgency procedures in each of the devolved legislatures where they are acting alone.

Consequential provision

379. Paragraph 18 provides that any regulations made under the consequential amendment power in section 39(1) are to be subject to the negative procedure.

Part 2

No power to make provision outside devolved competence

380. Paragraph 19, sub-paragraph (1) provides that where a devolved authority, acting alone, makes regulations under the powers in sections 31, 32 and 33 of the Act (which are all conferred concurrently on the devolved administrations) they cannot make any provision that would be outside of devolved competence. Devolved competence is defined for these purposes in paragraphs 24 to 26 of the Schedule (as described below).

Requirement for consent where it would otherwise be required

381. Paragraph 20 sets out that if a devolved authority is making a provision using these powers that would require consent if it were a provision in legislation of the relevant devolved legislature, or where the devolved administration would normally require consent to make such a provision via secondary legislation, then that consent will still be required. This will not apply if the devolved authority already has power to make such provision using secondary legislation without needing the consent of the Minister of the Crown.

Requirement for joint exercise where it would otherwise be required

382. Paragraph 21 sets out that where a devolved authority would normally only be able to make legislation jointly with the UK Government, the devolved authority will still have to make such legislation jointly when exercising the powers in the Act.

Requirement for consultation where it would otherwise be required

383. Paragraph 22 requires consultation with the UK Government on legislation made by a devolved authority in the exercise of powers in the Act, where the devolved authority would normally be required to consult with the UK Government when making those kinds of changes in legislation.

Meaning of devolved competence

384. Paragraphs 23 - 25 define devolved competence, and provide that a provision would be within the competence of a devolved authority if it would either be within the legislative competence of an Act of the relevant devolved legislature (Scottish Parliament, Senedd Cymru, Northern Ireland Assembly) or if it could be made by that devolved authority in other subordinate legislation.

Part 3

Scope and nature of powers: general

385. Paragraph 26 provides that powers to make regulations in the Act are exercisable by statutory instrument (where exercised by a Minister of the Crown, by a Welsh minister or by a Minister of the Crown acting jointly with a devolved authority) and by statutory rule (where the powers are exercised by a Northern Ireland department alone). Regulations made by Scottish ministers acting alone will be made by Scottish statutory instrument, as provided for by section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010.
386. Paragraph 27 clarifies the scope of the powers in the Act by providing that all the powers in the Act can be used to make different provision for different cases or descriptions of case, in different circumstances, areas or for different purposes and include the power to make supplementary, incidental, consequential, transitional, transitory or saving provision.
387. Paragraph 28 provides that powers in the Act do not affect any other powers to make regulations, whether they are in this Act or in another enactment.

Anticipatory exercise of powers in relation to future relationship agreements etc.

388. Paragraph 29 provides that powers to make regulations in relation to the Agreements may be used ahead of the signature, provisional application or ratification of those Agreements.

Scope of appointed day power

389. Paragraph 30 provides that the power of a minister to appoint a day as per section 40(7) also enables them to pick a time on the appointed day, if they consider it appropriate.

Disapplication of certain review provisions

390. Paragraph 31 provides for section 28 of the Small Business, Enterprise and Employment Act 2015 (which requires review provisions to be inserted into secondary legislation in certain circumstances) to be disapplied in relation to any powers to make regulations under this Act as they relate to ongoing obligations under international law.

Hybrid instruments

391. Paragraph 32 sets out that regulations brought forward under the powers in this Act are never to be treated as hybrid instruments. Some statutory instruments which need to be approved by both Houses (affirmative instruments) are ruled to be hybrid instruments because they affect some members of a group (be it individuals or bodies) in a manner different from others in the same group.

Procedure on re-exercise of certain powers

392. Paragraph 33 provides that if a power to make regulations, which under this Schedule is capable of being subject to different procedures, is used to revoke, amend or re-enact an instrument then it can be subject to a different procedure when doing so than the one the instrument in question was originally subject to.

Combinations of instruments

393. Paragraph 34 makes provision for what happens when instruments that would normally be subject to different procedures are combined.