1.1 The European Union (Withdrawal) Act 2018 requires that a Minister of the Crown makes a ‘sifting’ statement (see below). On more than one occasion a government department has failed to identify correctly the instrument to which the ‘sifting’ statement in the memorandum related.
1.2 The requirement for the ‘sifting’ statement is set out in Schedule 7 to the European Union (Withdrawal) Act 2018 (the Act). When proposing to make a statutory instrument under section 8(1) of the Act using the ‘negative’ procedure, Paragraph 3(3)(a) establishes a condition requiring that a Minister of the Crown ‘has made a statement in writing to the effect that in the Minister’s opinion the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament’. Additionally, Paragraph 3(3)(b)(ii) requires that ‘a memorandum setting out the statement and the reasons for the Minister’s opinion’ is laid before each House of Parliament.
1.3 Failure to identify correctly the instrument to which the memorandum relates is not a mere typographical error of the kind that can be corrected informally but amounts to a failure to comply with the requirements of the Act. In such circumstances, the Committee believes that the memorandum must be corrected and re-laid before Parliament.
1.4 The Committee further notes that the ‘relevant period’ in which it is required to make a recommendation is set out in Paragraph 3(10) of Schedule 7 to the Act. The Act specifies that for the purposes of the ‘relevant period’, the beginning of the period is triggered by the laying of the relevant draft instrument before each House as required by Paragraph 3(3)(b)(i).
1.5 The Committee believes to begin its work all the statutory information must be provided. Paragraph 3(3)(b) is therefore taken as a single indivisible obligation in relation to the instrument and the memorandum, and both will need to be re-laid if there is an error in the ‘sifting’ statement. The ‘relevant period’ will not begin until that statutory obligation has been met and the Committee has the correct information before it on which to consider its recommendation.
1.6 The Committee sets out this information to ensure departments understand its expectations in these circumstances and is pleased to note that the departments concerned have so far followed this procedure.
1.7 Schedule 7 to the European Union (Withdrawal) Act 2018 provides for mandatory affirmative resolution in the case of an instrument which “creates, or widens the scope of, a criminal offence”: it has been suggested that a de minimis threshold or significance test should be attached to this provision. Such a test was not included in the legislation expressly. The Committee believes that paragraph 1(2)(c) of Schedule 7 is clear: in any event, whether or not affirmative resolution is mandatory as a matter of law, the Committee expects to recommend affirmative resolution in all such cases.
1.8 In contrast, Schedule 7, paragraph 1(2)(a) and (d) are expressly confined to powers to legislate: in relation to other sub-delegations of power, the Committee is applying a significance threshold, and will not take the mere fact of delegating a power to Ministers or to another public authority as a trigger for affirmative resolution.
1.9 Although no instances have yet arisen for in which this has been determinative of the Committee’s consideration of an instrument, it may be helpful to record that the Committee expects to recommend for affirmative resolution any instrument which disapplies any of the standard legislative presumptions (such as the presumption against ouster of judicial jurisdiction) or makes significantly retrospective provision.
Published: 22 November 2018