3.1 Scrutiny in the UK Parliament
The UK Parliament can delegate powers to UK Government ministers to make laws that extend to Scotland. Scrutiny of subordinate legislation by the UK Parliament is therefore important. You have explored the use of legislative consent motions and know that the UK Parliament is able to make laws for Scotland in reserved areas. To understand law making in Scotland it is therefore also necessary to be familiar with UK Parliamentary procedure for scrutiny and challenge. There are three procedures in the UK Parliament.
Box 3 Procedures for approving delegated legislation in the UK Parliament
(I) The Negative Procedure
- Delegated legislation going through this procedure becomes law on a stated date unless there is a motion passed in either House annulling the instrument. This motion is known as a ‘prayer’. If a member of either House wishes to reject a negative instrument they have to do so within 40 days of the instrument being laid before the UK Parliament.
- In the House of Commons, MPs table a prayer by putting it down as an Early Day Motion. If time is allocated, MPs have up to 90 minutes to debate the instrument.
- In the House of Lords, time is usually found for debate on a prayer motion. This debate is not subject to a time limit. Peers can either seek to reject the instrument or table a non-fatal motion, critical of the instrument without annulling it.
(II) The Affirmative Procedure
- The most substantial and important pieces of delegated legislation are subject to a more stringent form of control and require the active approval of both Houses of Parliament before they can come into effect.
- In the House of Commons, affirmative instruments are referred to a Delegated Legislation Committee for debate, unless a motion for the debate to be held in the Commons chamber is tabled. Debates last no longer than 90 minutes and are conducted on a ‘consideration’ motion. Following debate in committee, an approval motion is put formally to the House without debate on a separate day.
- In the House of Lords, a motion to approve an affirmative instrument can be taken in either Grand Committee or on the Floor of the House. Peers can express their opposition or concern by making an amendment to the approval motion or by tabling a separate motion, effectively withholding the agreement of the House – as was the case in October 2015 when Peers delayed approval of the Tax Credit regulations.
(III) The Strengthened Scrutiny Procedures
- There are currently 10 Acts of the UK Parliament that provide for certain of their powers contained to be subjected to a higher level of parliamentary scrutiny than the affirmative procedure. They confer upon a minister a significant power to amend primary legislation (often referred to as a Henry VIII power). The UK Parliament therefore has the opportunity to comment and recommend changes to proposals under these powers and in some cases to veto the proposed instrument.