This briefing paper reviews the amendments made to the European Union (Withdrawal) Bill 2017-19 that concern how the two Houses sift statutory instruments made under what will become the European Union (Withdrawal) Act.Jump to full report >>
In legislating for Brexit, there has been widespread acceptance that regulations to convert non-domestic EU law into UK law will need to be implemented speedily and flexibly. However, concern was expressed that Parliament had little oversight of, and no opportunity to revise, such regulations.
The European Union (Withdrawal) Bill 2017-19 (EUW Bill), which was first introduced (Bill 5 of 2017-19), in July 2017. Among other things, it includes powers to make regulations to convert EU law onto the post-exit day statute book. Schedule 7 specified that regulations that do certain things (such create a criminal offence) would be subject to the draft affirmative procedure. Other regulations would be subject to the negative resolution procedure, although ministers could choose to lay such regulations in draft (such drafts would be subject to the affirmative resolution procedure).
The Government proposed that parliamentary scrutiny of these SIs should be in line with current procedures. The Bill, as introduced, did not establish any novel requirements for parliamentary scrutiny or approval.
Reports from committees in both the House of Commons and the House of Lords recommended strengthened scrutiny procedures (see section 5 of the Library briefing paper The European Union (Withdrawal) Bill: scrutiny of secondary legislation: Schedule 7, CBP-8172, 7 December 2017). Amendments, to the EUW Bill, were agreed in the House of Commons to introduce a sifting mechanism that operated in the Commons. Changes were made by the House of Lords, including extending sifting to both Houses. (The Library briefing paper, European Union (Withdrawal) Bill 2017-19: Commons consideration of Lords amendments, CBP-8328, 5 June 2018, provides an overview of changes made to the original bill in both Houses.)
At Committee stage in the House of Commons, the House agreed, without a division, to amendments moved by Charles Walker, Chair of the Procedure Committee, to create a procedure in the House of Commons for sifting SIs that the Government proposed should be subject to the negative resolution procedure.
Under this mechanism, a proposal for a negative SI would be laid before Parliament. The relevant minister would provide a written statement specifying that the proposed negative instrument should be subject to the negative resolution procedure and a memorandum setting out that statement and giving reasons for the recommendation.
Any SIs subject to the affirmative procedure would continue to proceed in the normal way.
A new select committee, the European Statutory Instrument Committee, would be appointed to sift the proposals for negative SIs. SIs made under clauses 7, 8 and 9, of the Bill as first introduced (Bill 5 of 2017-19) would be subject to the sifting process. The ESIC would consider each proposed negative SI and the accompanying memorandum. Then it would recommend whether the proposed SI should be subject to the affirmative or negative resolution procedure. The Bill specified that the ESIC would have 10 sitting days from the day after the proposal was laid to make any recommendation on the procedure the SI should face. Nothing in the Bill (that was sent from the House of Commons to the House of Lords) required the Minister to accept the Committee’s recommendation.
Andrea Leadsom, the Leader of the House of Commons, tabled a motion to establish the Committee, after the House amended the Bill. She later told the House that the proposed Standing Order would be considered after the EUW Bill had received Royal Assent.
After the ESIC had reported on the SI or after the 10-day period had passed, the Minister would then be able to lay a made negative SI that would be subject to annulment or a draft affirmative order that would require parliamentary approval before it could be made.
The Bill was sent to the House of Lords containing this sifting requirement.
At report stage, in the House of Lords, the Government tabled amendments to provide for the sifting process to happen in the House of Lords as well as in the House of Commons.
However, the Government’s amendments could not be moved because another amendment that was agreed beforehand removed the provisions that the Government sought to amend.
The amendment that was agreed confirmed that both Houses would have sifting committees but removed the need to lay a proposal for a negative SI: instead a draft negative SI would be laid and the negative procedure would apply unless either House required the affirmative procedure to apply.
Concerns have been expressed that 10 sitting days is not a sufficient period of time for the sifting committees, particularly if they wished to raise questions with the Government; and questions have also been asked about how sifting committees could ensure that representations from the public were taken on board. However, noting its need “to get a functioning statute book by exit day”, the Government consider it sufficient.
The House of Commons disagreed to the Lords Amendments on 12 June 2018. The House of Lords did not insist on its amendments but suggested amendments in lieu, on 18 June. These will be considered by the House of Commons on 20 June.
In March 2017, the Government estimated that “the necessary corrections to the law will require between 800 and 1,000 statutory instruments”.
On 2 May 2018, Steve Baker restated this figure but added that “at the moment new information shows that it will be much closer to 800 than 1,000”. He also told the Procedure Committee that the Government expected that 20%-30% of the SIs would be subject to the affirmative procedure.
However, in addition to SIs under the EUW Bill, Andrea Leadsom noted that other Brexit bills “could generate in the low hundreds of statutory instruments”. These SIs would not be subject to the sifting process, which only applies to EUW Bill SIs.
The Library briefing paper The European Union (Withdrawal) Bill: scrutiny of secondary legislation: Schedule 7, CBP-8172, 7 December 2017 was published before proposals for sifting SIs were considered at committee stage in the House of Commons. It has not been updated since then.
Commons Briefing papers CBP-8329
Author: Richard Kelly