UK: Lords committee will be able to force scrutiny of secondary legislation under EU withdrawal act

The committee will have the power in the Lords to recommend that instruments proposed by ministers in the negative form – which can come into force without a debate in Parliament – should instead be affirmative instruments, meaning a debate is required before they could come into force.

In a report published today the committee says that its starting point will be to apply an overarching test, based on its existing ground for reporting regulations that are “politically or legally important”. 

In looking at proposed negative instruments under the 2018 Act, it will consider whether the subject matter of the instrument and the scope of any policy change effected by it are of such significance that the House would expect to debate it.

The committee also lists a range of policy matters which may guide its decision on whether to recommend that an instrument should be upgraded to the affirmative procedure.

In setting out its working arrangements, the committee stressed the need for government to manage the flow of instruments to Parliament, and to provide good explanatory material alongside them.  It endorsed the need for good co-operation with the sifting committee that is being set up in the Commons, and for external interests to make their views known to Parliament in good time for the sifting process.

Lord Trefgarne, chairman of the Secondary Legislation Scrutiny Committee, said: “The committee welcomes this opportunity to contribute to the important task of scrutinising the secondary legislation laid under the EU (Withdrawal) Act 2018, whether as proposed negative instruments or as fully-fledged statutory instruments.  We intend to carry out this scrutiny to the high standards to which the House has become accustomed.

“We look to government to play their part in ensuring that instruments are presented to Parliament in a well-organised way, and that the material provided in support gives Parliament all the information needed to reach expeditious decisions on those instruments.”