1.1Our experience in sifting over 70 instruments has made it possible to set out the principles that we are applying in our consideration of each proposal. We hope that publishing this information will benefit the Government and other stakeholders in their understanding of our approach.
1.2As part of assessing each proposal, we consider whether an instrument significantly diminishes rights, whether in a consumer context or in other contexts. The threshold is one of significance—but when in doubt we are inclined to assume that an instrument which in disengaging from EU obligations results in a diminution of rights should be subject to affirmative resolution.
1.3It would be helpful to the Committee if the impact of the diminution of rights could be better evaluated and evidenced in the Explanatory Memoranda (EMs) that are laid alongside every proposed negative statutory instrument, and which contain information explaining the purpose and policy background of the instrument. This should include information on any consultation with the affected parties, the current reliance on the rights and the anticipated practical impact of the diminution of those rights. Information provided on consultations has varied significantly and ranges from no information at all to significant Impact Assessments (IAs) published in addition to the EM. We have recently commented adversely where the impact on UK business and consumers had not been provided by the department on the basis that the impacts did “not arise out of any domestic UK policy” but as a direct result of exiting the European Union. Similarly, we note that a department had “not been able to publicly consult in order to minimise sensitivities in advance of negotiations with the EU”.
1.4We note that departments have explained the territorial extent and application as being the same as the instruments which they amend. This is insufficient, particularly where a proposal amends more than one instrument, and we expect this information to be set out in full in the EM.
1.5The European Union (Withdrawal) Act 2018 requires that a Minister of the Crown makes a ‘sifting’ statement for each proposal. On more than one occasion a government department has failed to identify correctly the instrument to which the ‘sifting’ statement in the memorandum related. The approach we take in these circumstances is set out in full in the technical note attached as an Annex which will be of interest to those drafting instruments.
1.6We have also identified the following issues which relate to ‘sifting’ statements and which will generally meet with our disapproval:
1.7In relation to the use of secondary legislation to amend primary legislation, commonly known as ‘Henry VIII powers’, we have judged each case based on the volume and importance of the changes being proposed.
1.8We have not necessarily followed the presumption that the affirmative procedure is appropriate when such powers are being used in cases where the number and effect of amendments has been modest. However, we also consider the cumulative impact of large numbers of amendments being made throughout an Act and on that basis may recommend that the additional safeguard of affirmative resolution is appropriate.
1.9In the technical note (attached as an annex), we set out the approach we are taking to cases of mandatory affirmative procedure as provided for in the European Union (Withdrawal) Act 2018.
2.0 We believe that the provisions of the European Union (Withdrawal) Act 2018 require us to consider the totality of an instrument, including provisions made under domestic vires as well as provisions under the Withdrawal Act. Although it is helpful for Explanatory Memoranda to continue to identify the vires for individual provisions of instruments, in mixed-vires cases we will consider the overall effect of the instrument, not just the effect of the provisions under the Withdrawal Act.
2.1 In a case where the Department had originally proposed to combine in one instrument the exercise of powers under the Withdrawal Act and other domestic vires, one result of the Government’s acceptance of a recommendation by the Committee that the Withdrawal Act powers should be handled through the affirmative procedure is that it may be necessary to produce two separate instruments, one containing the negative resolution domestic powers and one dealing with the exercise of the powers under Withdrawal Act.
2.2 The principles set out above are not intended to be exhaustive but arise from our experience to date. The Committee will include other points of interest as appropriate in our future reports.
Published: 22 November 2018