New Clause 17 - Combination of powers

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 2:45 pm on 9 March 2006.

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‘In Schedule 2 to the European Communities Act 1972 (c. 68), after paragraph 2 insert—

“2A(1)This paragraph applies where, pursuant to paragraph 2(2) above, a draft of a statutory instrument containing provision made in exercise of the power conferred by section 2(2) of this Act is laid before Parliament for approval by resolution of each House of Parliament and—

(a)the instrument also contains provision made in exercise of a power conferred by any other enactment; and

(b)apart from this paragraph, any of the conditions in sub-paragraph (2) below applies in relation to the instrument so far as containing that provision.

(2)The conditions referred to in sub-paragraph (1)(b) above are that—

(a)the instrument, so far as containing the provision referred to in sub-paragraph (1)(a) above, is by virtue of any enactment subject to annulment in pursuance of a resolution of either House of Parliament;

(b)in a case not falling within paragraph (a) above, the instrument so far as containing that provision is by virtue of any enactment required to be laid before Parliament after being made but is not required by virtue of any enactment to be approved by resolution of each House of Parliament in order to come into or remain in force;

(c)the instrument so far as containing that provision is not by virtue of any enactment required to be laid before Parliament after being made.

(3)Where this paragraph applies in relation to the draft of a statutory instrument—

(a)the instrument, so far as containing the provision referred to in sub-paragraph (1)(a) above, may not be made unless the draft is approved by a resolution of each House of Parliament;

(b)in a case where the condition in sub-paragraph (2)(a) above is satisfied, the instrument so far as containing that provision is not subject to annulment in pursuance of a resolution of either House of Parliament; and

(c)in a case where the condition in sub-paragraph (2)(b) above is satisfied, the instrument so far as containing that provision is not required to be laid before Parliament after being made.

(4)In this paragraph, references to an enactment are to an enactment passed or made before or after the coming into force of this paragraph.

2B(1)This paragraph applies where, pursuant to paragraph 2(2) above, a statutory instrument containing provision made in exercise of the power conferred by section 2(2) of this Act is laid before Parliament under section 5 of the Statutory Instruments Act 1946 (instruments subject to annulment) and—

(a)the instrument also contains provision made in exercise of a power conferred by any other enactment; and

(b)apart from this paragraph, either of the conditions in sub-paragraph (2) below applies in relation to the instrument so far as containing that provision.

(2)The conditions referred to in sub-paragraph (1)(b) above are that—

(a)the instrument so far as containing the provision referred to in sub-paragraph (1)(a) above is by virtue of any enactment required to be laid before Parliament after being made but—

(i)is not subject to annulment in pursuance of a resolution of either House of Parliament; and

(ii)is not by virtue of any enactment required to be approved by resolution of each House of Parliament in order to come into or remain in force;

(b)the instrument so far as containing that provision is not by virtue of any enactment required to be laid before Parliament after being made.

(3)Where this paragraph applies in relation to a statutory instrument, the instrument, so far as containing the provision referred to in sub-paragraph (1)(a) above, is subject to annulment in pursuance of a resolution of either House of Parliament.

(4)In this paragraph, references to an enactment are to an enactment passed or made before or after the coming into force of this paragraph.

2CParagraphs 2A and 2B above apply to a Scottish statutory instrument containing provision made in the exercise of the power conferred by section 2(2) of this Act (and a draft of any such instrument) as they apply to any other statutory instrument containing such provision (or, as the case may be, any draft of such an instrument), but subject to the following modifications—

(a)references to Parliament and to each or either House of Parliament are to be read as references to the Scottish Parliament;

(b)references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament; and

(c)the reference in paragraph 2B(1) to section 5 of the Statutory Instruments Act 1946 is to be read as a reference to article 10(2) of the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 (S.I. 1999/1096).”’.—[Mr. Murphy.]

Brought up, and read the First time.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I beg to move, That the clause be read a Second time.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss new clause 18—Combination with powers under European Communities Act 1972.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

As we come towards the end of our proceedings, I wish to talk to new clauses 17 and 18. They are technical, and I hope that members of the Committee found the note that I circulated last week to be helpful. I shall reiterate some of its points. Currently, it is not possible for a statutory instrument made under an enabling power in one Act to be combined with a statutory instrument made under an enabling power in another Act if parliamentary procedures require that the two Acts differ. However, it is possible for statutory instruments of same type, for example when both are orders or regulations, that are   made under different enabling powers and go through the same parliamentary procedure, to be combined into one instrument.

New clause 17 would enable provisions under section 2(2) of the European Communities Act 1972 and those under another Act to be contained in a single instrument when the provision under the Act is subject to a different procedure. Broadly put, the instrument as a whole will have to follow whichever procedure under either Act is the more onerous. Section 2(2) of the European Communities Act enables the use of either affirmative or negative resolution procedure when the appropriate procedure for an instrument made under the section was affirmative. The instrument could also include provision made under another power.

New clause 18 will similarly make it possible to combine statutory instruments made under section 2(2) of the European Communities Act with an order made under clause 1, provided that the order as a whole is subject to the procedure required under part 1 of the Bill. That will enable a single order to implement Community law—section 2(2) of the ECA—while also using clause 1 to remove pre-existing domestic statutory regulatory requirements that are no longer thought appropriate, as a result.

I reassure hon. Members that the purpose of new clause 17 is not to enable Ministers to make provisions and subordinate instruments that they could not already have made, but to reduce the number of instruments needed to make provisions that could already be made. I hope that I have been helpful in a technical sense. The amendment is minor. As I have illustrated, it is about simplification.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I have a question, but I shall have to set the scene to get to it because it concerns such a complicated provision. I understand that, under section 2(2) of the European Communities Act, Ministers can implement European Community instruments by regulations. Section 2(2) refers to powers exercisable by statutory instrument, either affirmative or negative.

New clause 17 inserts new paragraphs 2A, 2B and 2C. Paragraph 2A applies when the statutory instrument being used to implement an EC instrument is affirmative resolution procedure and when the statutory instrument also includes provisions made under powers granted under another Act. Irrespective of whether the powers under the second Act were exercisable by statutory instrument subject to affirmative or negative procedure, or by a statutory instrument that did not have to be laid before Parliament, the statutory instrument made under the powers of both Acts would be affirmative.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

No. Under the hon. Gentleman’s proposed clause 2B, if the statutory instrument is subject to the negative resolution procedure, but also includes provisions from a different Act that are not subject to either affirmative or negative procedures, overall the procedure is negative. Section 2C deals with Scotland. The question, however, is why there are no   provisions for a statutory instrument that is used to implement an EC measure and which, while being subject to the negative procedure, also contains provisions under a second Act which are subject to either affirmative or negative procedures. All the other permutations are covered, but not that one, and I wondered why.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I wonder if the hon. Gentleman could offer to write to me with his question.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

I have only one comment on the new clause. I asked an academic colleague what it meant, and his conclusion was that it is a rigmarole, but it does make some sense. I think I shall stop there.

Question put and agreed to.

Clause read a Second time, and added to the Bill.