Schedule 5: Regulations - Procedure Part 2: Powers of Relevant National Authority: Separate Exercise Separate exercise by a Minister of the Crown
Paragraph 5(1) sets out that a Minister of the Crown may not make a statutory instrument containing regulations to which this Part of this Schedule applies and that fall within sub-paragraph (2) unless a draft of the instrument has been laid and approved by both Houses of Parliament (i.e. is subject to the draft affirmative procedure).
	Paragraph 7(2) sets out that the regulations falling within this sub-paragraph - and therefore subject to the draft affirmative procedure - are:
regulations under section 1 (power to disapply the sunset)
regulations under section 7 (compatibility power) which amend, repeal or revoke primary legislation;
regulations under section 11 (power to restate retained EU law) and section 12 (power to restate assimilated law or reproduce sunsetted EU rights, powers, liabilities etc) which amend, repeal or revoke primary legislation;
regulations under section 14(2) (power to revoke and replace REUL with provision achieving same or similar objectives) which confer a power to make subordinate legislation or create a criminal offence;
regulations under section 14(3) (power to revoke and replace REUL with any alternative provision); and
regulations under section 19 (power to make consequential provision) which amend or repeal primary legislation.
	Paragraphs 5(3) and (4) provide that the following regulations made by a Minister of the Crown acting alone may be made subject to annulment by either House of Parliament (the negative procedure)-
regulations under section 7 (compatibility power) that does not amend, repeal or revoke primary legislation;
regulations under section 15 (power to update);
regulations under section 19 (power to make consequential amendment) that does not amend, repeal or revoke primary legislation.
	Paragraph 5(5) sets out that a statutory instrument made by a Minister of the Crown containing regulations to which this Part of Schedule 5 applies and to which neither sub-paragraphs (1) nor sub-paragraphs (3) applies is subject to either the draft affirmative or the negative procedure. In effect, a Minister has a choice about which procedure may apply. If, however, a Minister proposes to use the negative procedure, the requirements of paragraph 6 may apply.
	Paragraph 6 sets out the requirements for the sifting mechanism which applies to some proposed statutory instruments that contain regulations to be made under section 11 (power to restate retained EU law), section 12 (power to restate assimilated law or sunsetted EU rights, powers, liabilities etc) or section 14 (powers to revoke or replace).
	Paragraph 6(1) sets out that the conditions of the sifting mechanism under sub-paragraph (2) applies where-
a Minister of the Crown who is acting alone makes a statutory instrument containing regulations under section 11, 12 or 14,
paragraph 5(5) applies to the regulations (i.e. there is a choice between the negative and draft affirmative procedures), and
the Minister is of the opinion that the appropriate procedure for the instrument is for it to be subject to the negative procedure.
	Paragraph 6(2) sets out that a Minister may not make the instrument so that it is subject to the negative procedure unless-
condition 1 is met, and
either condition 2 or 3 is met.
	Paragraph 6(3) outlines condition 1. Condition 1 is where a Minister of the Crown:
has produced a written statement that states that in the Minister’s opinion the instrument should be subject to the negative procedure, and
has laid before each House of Parliament:
a draft of the instrument, and
a memorandum setting out the statement and the reasons for the Minister's opinion.
	Paragraph 6(4) outlines condition 2. Condition 2 is that committees of both the House of Commons and House of Lords, who have been given the authority to do so, each make a recommendation on the appropriate procedure for the instrument within the relevant period (i.e. effectively within 10 sitting days from when the draft instrument is laid; see subparagraph (10) and (11)).
	Paragraph 6(5) outlines condition 3. Condition 3 is that the relevant period has ended without condition 2 being met.
	Paragraph 6(6) sets out that sub-paragraph (7) applies where:
a committee (of the House of Lords or the House of Commons) makes a recommendation (as set out in sub-paragraph (4)) within the appropriate time frame,
the recommendation states that the appropriate procedure for the instrument is for it to be subject to the draft affirmative procedure, and
the Minister that is making the instrument is nevertheless of the view that the appropriate procedure for the instrument is for it to be subject to the negative procedure.
	Paragraph 6(7) sets out that prior to the instrument being made, the Minister must make a statement explaining why the Minister does not agree with the committee’s recommendation.
	Paragraph 6(8) states that if the Minister fails to make the required statement before the instrument is made, then a Minister of the Crown must make a statement explaining why the Minister has failed to do so.
	Paragraph 6(9) sets out that statements under sub-paragraph (7) or (8) must be in writing and published in a way that the Minister making the statement decides is appropriate.
	Paragraph 6(10) sets out that in this context the use of "the relevant period" should be understood as the period –
starting with the first day on which both Houses of Parliament are sitting following the day the draft instrument was laid before each house, and
ending with whichever comes last of the following:
the end of the period of 10 Commons sitting days beginning with that first day, and
the end of the period of 10 Lords sitting days beginning with that first day.
	Paragraph 6(11) explains that in relation to sub-paragraph (10):
where a draft of an instrument is laid before each House of Parliament on different days, the later day should be understood as the day it is laid before both Houses,
a "Commons sitting day" means a day on which the House of Commons is sitting, and
a "Lords sitting day" means a day on which the House of Lords is sitting.
	Paragraph 6(11) also sets out that for the purposes of sub-paragraph (10) a "day" can only be considered a day where the House of Commons or the House of Lords is sitting if the House concerned starts to sit on that day.
	Paragraph 6(12) sets out that nothing in this paragraph would prevent a Minister of the Crown from deciding, at any time before a statutory instrument containing regulations under section 11, 12 or 14 is made, that another procedure should apply to the instrument.
	Paragraph 8(13) sets out that section 6(1) 1 of the Statutory Instruments Act 1946 (alternative procedure for certain instruments laid in draft before Parliament) does not apply to any statutory instrument to which this paragraph applies.