The European Union (Withdrawal) Act 2018: scrutiny of secondary legislation (Schedule 7)

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) Act 2018 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 European Union (Withdrawal) Bill 2017-19 (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.)

A sifting process for the Commons

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.

Amendments to the process were made by the Lords, and rejected by the Commons, before the Lords proposed something broadly similar to Commons provisions, which also provided for sifting in the Lords, which the Commons accepted.

Any SIs subject to the affirmative procedure would continue to proceed in the normal way.

In the House of Commons, a new select committee, the European Statutory Instrument Committee, would be appointed to sift the proposals for negative SIs. SIs made under sections 8, 9 and 23(1) of the Act would be subject to the sifting process, if the Government proposed that they were subject to the negative procedure. 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 Act specifies 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. The Act does not require 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 sifting process will also occur in the House of Lords, where the Secondary Legislation Scrutiny Committee will perform the role.

Establishing the ESIC

At Business Questions on 5 July 2018, Andrea Leadsom, the Leader of the House of Commons, announced that there would be a debate on a motion to approve Standing Orders relating to the European Statutory Instruments Committee on 10 July 2018.

On 9 July 2018, the Procedure Committee published a report, Scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018. The committee described the powers in the Act, the choices Ministers have in making certain SIs, the sifting process and recommended some changes to the Standing Orders, proposed by Andrea Leadsom, to establish ESIC.

How many SIs will be laid?

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.