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Parliamentary Counsel questioned on the use of consequential provision and the power to "otherwise modify" primary legislation

7 March 2017

On Wednesday 8 March the House of Lords Delegated Powers and Regulatory Reform Committee will hear evidence from the First Parliamentary Counsel and Second Parliamentary Counsel on the level of parliamentary scrutiny applied to consequential provision and the power to "otherwise modify".


Wednesday 8 March 2017, Committee Room 2A, Palace of Westminster

At 10.40am

  • Elizabeth Gardiner CB, First Parliamentary Counsel and Permanent Secretary of the Government in Parliament Group, Office of the Parliamentary Counsel, Cabinet Office.
  • David Cook CB, Second Parliamentary Counsel, Office of the Parliamentary Counsel, Cabinet Office.

Possible questions

  • Consequential provision in an Act often includes a Henry VIII power to amend, repeal or “otherwise modify” primary legislation. How would you distinguish a power to amend and a power to “otherwise modify”?
  • Non-textual modification has the potential to be as significant or insignificant as textual amendment. Why, therefore, is the affirmative procedure often applied to all textual amendments and the negative procedure to all non-textual modifications?
  • The Government have argued that applying the affirmative procedure to non-textual “modifications” could create “legal uncertainty” because it is “not always clear when a provision non-textually modifies primary legislation” and so it would not be clear whether the negative or the affirmative procedure applied. Why is this lack of clarity an argument for applying the negative procedure since a modification would have to be identified whether subject to the negative or the affirmative procedure?

Further information

Image: Parliamentary copyright