On 10 July 2018 the Constitutional and Legislative Affairs Committee published its report The Powers in the EU (Withdrawal) Bill to make subordinate legislation - operational matters. This article summarises it.
The EU (Withdrawal) Act 2018
On 13 July 2017, the EU (Withdrawal) Bill received its first reading in the House of Commons. The Bill set out how the current body of European Union (EU) law will be converted into UK law (and become known as retained EU law) upon the UK’s withdrawal from the EU. The Bill completed its passage through the House of Commons on 17 January 2018 and the House of Lords on 16 May 2018. Following ping pong, both Houses agreed on the text of the Bill on 20 June 2016 and it received Royal Assent on 26 June 2018, becoming the European Union (Withdrawal) Act 2018 (“the 2018 Act”).
The 2018 Act splits retained EU law (i.e any law which, on or after exit day, continues to be, or forms part of domestic law) into three categories:
- EU-derived domestic legislation (under section 2 of the 2018 Act);
- Direct EU legislation (under section 3 of the 2018 Act);
- Rights, powers, liabilities etc. that arise under the European Communities Act 1972 (under section 4 of the 2018 Act).
The 2018 Act gives the Welsh Ministers regulation-making powers to deal with deficiencies arising from the UK’s withdrawal and to implement the withdrawal agreement. The Welsh Ministers can use these regulation-making powers to modify retained EU law, subject to some important limitations. For example, the Welsh Ministers could not use their powers to modify retained direct EU legislation when the modification would be in breach of restrictions imposed by UK Government regulations (i.e. restrictions imposed on the Welsh Ministers).
In February 2018, the Constitutional and Legislative Affairs Committee (CLAC) published its report on Scrutiny of regulations made under the European Union (Withdrawal) Bill. It focused predominantly on amendments that the Committee considered should be made to the European Union (Withdrawal) Bill during its passage, at that time, through the House of Lords. That report stated:
We may also report at a later date on more operational matters that relate to the scrutiny of subordinate legislation made under the Bill, including where appropriate, any changes that we believe may be needed to the National Assembly’s Standing Orders. The final Bill approved by the UK Parliament is also likely to influence these matters.
What is the “sifting process”?
Paragraph 4 of Schedule 7 to the 2018 Act provides for a committee in the National Assembly to sift certain regulations that the Welsh Ministers propose to make under the negative procedure (“proposed negative regulations”) and to recommend the appropriate procedure to be followed. The detail of the sifting process set out in Schedule 7 to the 2018 Act, as it applies to the National Assembly, is as follows:
- all regulations proposed to be made by the Welsh Ministers under the powers in Parts 1 and 2 of Schedule 2 (other than those to be made jointly with UK Ministers), and which the Welsh Ministers consider ought to be made under the negative procedure, shall be laid before the National Assembly;
- within a period of 14 calendar days after laying, the Welsh Ministers may not make the proposed negative regulations (i.e. sign them into law), unless the National Assembly sifting committee has made a recommendation as to the appropriate procedure for the regulations;
- within those 14 calendar days, the National Assembly sifting committee may consider the proposed negative regulations and report its recommendation that the regulations should follow an alternative procedure (such as the affirmative procedure);
- after the 14 calendar days have elapsed (or sooner if the National Assembly sifting committee has made a recommendation) the Welsh Ministers may proceed with the proposed negative regulations under either:
- the procedure recommended by the National Assembly sifting committee, such as the affirmative procedure (i.e. the instrument requires a debate and a vote in the National Assembly before it may be made and brought into force), or
- the negative procedure (i.e. the instrument is made and may be brought into force, but it will be annulled if the National Assembly resolves to annul it within 40 days of it being laid).
The Report
The most recent report addresses operational matters in conducting the sift. The Committee recommended that:
- the National Assembly’s Standing Orders should be amended to provide that the function of making a recommendation as to the appropriate procedure to apply to regulations subject to the sifting process under the 2018 Act is assigned to a committee.
- That, on the assumption that CLAC is the Committee assigned the function of sifting regulations under the 2018 Act, it should be required by the National Assembly’s Standing Orders to publish the criteria that we will apply to regulations subject to the sifting process.
- If the National Assembly is content for recommendations of the sifting committee not to be binding, the Committee recommend that Standing Orders should be amended to place a requirement on the Welsh Ministers to explain why they do not agree with the committee’s recommendations (as applies to UK Ministers in paragraph 3(7) of Schedule 7 to the 2018 Act).
- That the Leader of the House writes to the Committee before the end of July 2018, providing an update on the number of regulations that will be required to correct deficiencies in retained EU law as a result of the UK’s withdrawal from the EU, as well as an update on the number of any other regulations that will need to be made under the 2018 Act.
- That in deciding future committee timetables, consideration is given to the potential need for the Committee, in in its role as the sifting committee, to sit longer, and / or on a different day, and / or sit more than once a week in order to scrutinise regulations that will be made under the 2018 Act.
- That the Welsh Government enters into an agreement with the sifting committee to cover:
- an early warning system to assist with managing the scrutiny of all subordinate legislation until the end of this Assembly (in 2021);
- the optimum day of laying of proposed negative regulations under the 2018 Act; and
- any other matter that will aid the effective and efficient scrutiny of regulations made under the 2018 Act, especially regulations correcting deficiencies in retained EU law.
- That the National Assembly’s Standing Orders require that, where UK Ministers acting alone in devolved areas lay before the UK Parliament regulations in areas within the legislative competence of the National Assembly or the executive competence of the Welsh Ministers, and where the Welsh Ministers are required to give their consent to the making of those regulations:
- the Welsh Ministers notify the National Assembly within one working day of the regulations being laid; and
- such notification is accompanied by an explanatory memorandum summarising the purpose and impact of the regulations and explaining why the Welsh Ministers have given their consent.
- that the National Assembly’s Standing Orders require that, where UK Ministers acting alone lay before the UK Parliament regulations in areas within the legislative competence of the National Assembly or the executive competence of the Welsh Ministers, and where the Welsh Ministers are not required to give their consent to the making of those regulations:
- the Welsh Ministers notify the National Assembly within one working day of the regulations being laid; and
- such notification is accompanied by an explanatory memorandum summarising the purpose and impact of the regulations.
- That the National Assembly’s Standing Orders should be amended to provide a procedure in respect of the provisions contained in section 109A of the Government of Wales Act 2006, in particular to require an explanatory memorandum that:
- summarises the effect of regulations that UK Ministers propose to lay under section 109A(3) of the 2006 Act;
- makes a recommendation as whether the relevant draft regulations should be subsequently made by UK Ministers;
- explains the reasons for the recommendation made;
- to require that the Business Committee refers that explanatory memorandum to a committee or committees.
What next?
The first draft regulations are likely to be laid early in the autumn term. It is expected that the necessary changes to Standing Orders will take place in an early meeting of Plenary following the summer recess break.
Article by Alys Thomas, National Assembly for Wales Research Service.
