Sifting “proposed negative instruments” laid under the European Union (Withdrawal) Act 2018: criteria and working arrangements Contents

Chapter 1: Introduction

Purpose of this Report

1.During the passage of the European Union (Withdrawal) Bill (“the withdrawal Bill”) through the House of Lords, the Leader of the House, the Rt Hon. Baroness Evans of Bowes Park, set out her proposal that the Secondary Legislation Scrutiny Committee (SLSC) should carry out a new sifting function in relation to certain instruments laid under the European Union (Withdrawal) Act 2018 (“the withdrawal Act”).1 This proposal has since been agreed by the Procedure Committee2 and by the House.3 We are grateful to the Leader for her recognition of the “constructive engagement” she had had with the SLSC in developing this proposal,4 and note that the Government’s recent White Paper on the future relationship between the UK and the European Union looks forward to further engagement in the months to come:

“The Government has already demonstrated during the passage of the EU (Withdrawal) Bill that it will actively engage with suggestions from both Houses about the oversight of secondary legislation, adapting scrutiny arrangements as appropriate, and recognising the quality and expertise in the existing scrutiny structures in the Commons and the Lords.”5

2.The purpose of this Report is twofold:

3.In Chapter 4 we list the Committee’s conclusions.

Sifting function under the withdrawal Act

4.The powers conferred on Ministers by the withdrawal Act are exceptional. In its first report on the Bill, the Delegated Powers and Regulatory Reform Committee (DPRRC) described it as “one of the most important Bills in the constitutional history of the United Kingdom”, giving to Ministers “a range of powers, unique in peace-time, to override Acts of Parliament by statutory instrument …”.7 In an interim report on the Bill, the Constitution Committee referred to how “the number, range and overlapping nature of the broad delegated powers” in the Bill “would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw” which would “fundamentally challenge the constitutional balance of powers between Parliament and Government”.8

5.When Parliament delegates a power to Ministers by Act of Parliament, often the delegation is conditional on Parliament retaining a say in how it is used. This usually takes the form of requiring the power to be exercised by statutory instrument subject to either the affirmative or negative procedure, where the affirmative procedure requires an instrument to be agreed by both Houses and the negative procedure enables an instrument to come into, or remain in, force so long as neither House objects to it.9 The parent Act containing the power will almost always specify the level of parliamentary scrutiny to be applied to the exercise of the power. The withdrawal Act, however, like the European Communities Act 1972, is an exception in that, for some of the regulation-making powers contained in the Act, the level of parliamentary scrutiny is not specified and the choice is left to Ministers.

6.As a result, the House of Commons Procedure Committee, in a report published in November 2017 on the scrutiny of delegated legislation under the withdrawal Bill,10 asked the question: “should decisions on the appropriate level of scrutiny for specific but so far undefined instruments be made by Ministers before they are presented to Parliament, or are they matters for the House?”11 It concluded that they were matters for the House and recommended the establishment of a scrutiny committee to examine all instruments laid under the withdrawal Act. The DPRRC made a similar point. In its second report on the withdrawal Bill, it observed that the Government had not explained why it was “Ministers rather than Parliament who should have the final say on the appropriate level of parliamentary scrutiny in those cases where either the affirmative or negative procedure is capable of applying”.12 It too recommended that a sifting committee should be established.

7.Whilst in the House of Commons, the withdrawal Bill was amended to introduce a sifting mechanism whereby instruments for which the Minister had a choice of procedure, and had opted for the negative, would first be laid as “proposed negative instruments”. These proposed negative instruments would then be scrutinised by a committee in the House of Commons which could recommend, where appropriate, that the instrument be subject to the affirmative rather than the negative procedure. Further amendments were made to the Bill, and the withdrawal Act now contains a parliamentary sifting mechanism for instruments laid under sections 8, 9 and 23(1) by which committees in both Houses can make a recommendation that a proposed negative instrument should be upgraded to an affirmative instrument.

8.Such recommendations will be advisory only: under the Act, Ministers will still have the final say on whether to accept an upgrading recommendation.13 We note, however, the commitment made by the Leader of the House of Lords during the passage of the withdrawal Bill:

“… if both sifting committees were to reach the same … and persuasive recommendation, I assure your Lordships that the Government’s expectation is that such recommendations are likely to be accepted”.14

9.We also note the further commitment made by the Leader about how, if Ministers disagree with a recommendation to upgrade an instrument to the affirmative procedure, they will publicise their reasons for the disagreement:

“I know that there has been concern that Ministers may ignore the committees. I echo the sentiment of my right honourable friend the Secretary of State for Exiting the European Union when he said that there is likely to be a “political cost which will be significant” to going against a sifting committee recommendation.

As I made clear in our previous debates on this issue, the Government have always expected to have to justify themselves to the sifting committees where they agree, with Ministers either being called in person before the committee or writing to explain their views. I hope the House does not think that this is a commitment which Ministers would shirk or seek to shy away from.

However, in order to put this beyond doubt, the Government are happy to put their commitment into statute, and this is reflected in the amendments before us tonight. Ministers will be required to make and provide to Parliament a Written Statement explaining themselves if they disagree with a recommendation from one or both of the sifting committees. Your Lordships can be assured that there will be no hiding place from the light of your scrutiny.”15

This is embodied in Schedule 7 to the Act, paragraphs 3 and 17.

10.In the House of Lords, this sifting function is to be carried out by the SLSC. It is anticipated that a new European Statutory Instruments Committee will act as sifting committee in the House of Commons.

11.To reflect this additional function, the Committee has new terms of reference which are set out in Appendix 1 to this Report.


12.As a result of the Leader’s proposal that the SLSC should undertake the sifting function, in April 2018 the Committee launched an inquiry into what criteria should be applied when deciding whether to recommend that a proposed negative instrument be subject to the affirmative procedure. The following questions were asked:

(1)What criteria should the SLSC apply in deciding whether to recommend that a proposed negative instrument laid under the withdrawal legislation should be upgraded to an affirmative instrument?

(2)Should those criteria reflect or differ from the grounds for reporting currently contained in the SLSC’s terms of reference?

(3)Are there any categories of subject matter, aside from those stipulated on the face of the legislation … for which there should be a presumption in favour of the affirmative procedure?

(4)How should the SLSC work with the Joint Committee on Statutory Instruments?

(5)How should the SLSC work with the House of Commons European Statutory Instruments Committee?

13.Sifting instruments is not a novel activity in Parliament. The SLSC in its current role, as determined by the House when the Committee was established in 2003, can be said to act as a sifting committee in that it identifies instruments of particular significance and draws them to the special attention of the House. Other legislative committees in both Houses play a similar or related role:

14.We were therefore keen to hear the views of these committees on how they approached the task.

15.A list of those who responded to our Call for Evidence is set out in Appendix 2 to this Report. We are grateful for all their contributions which are published on the Committee’s webpage.

Flexibility and adapting to the challenge

16.We are publishing a report at this early stage not only to inform members of the House about how we intend to undertake the new sifting function, but also to assist those government departments involved in the preparation of proposed negative (and other) instruments to be laid under the withdrawal Act, and to assist individuals and organisations who may wish to know how and when to make their views on a particular instrument known to the Committee. Details on how to contact the Committee are set out on the inside front cover of this Report and information about when to contact the Committee during the sifting process is set out in paragraph 80 below.

17.That said, because we are at such an early stage in exercising this new function, we may, of course, in the light of experience, wish to change our practices and procedures. Given the uncertainty about when instruments will be laid and their rate of flow, over what period, how many we shall be considering, and their complexity and length, inevitably the Committee must be prepared to respond flexibly and to adapt to the challenges that lie ahead. The Committee welcomes this opportunity to contribute to the important task of scrutinising, to the high standards to which the House has become accustomed, the secondary legislation laid under the withdrawal Act, whether as proposed negative instruments or as fully-fledged statutory instruments.

1 HL Deb, 9 March 2018, col 152.

2 House of Lords Procedure Committee, 5th Report, Session 2017–19, HL Paper 163.

3 HL Deb, 11 July 2018, cols 915 - 919.

4 HL Deb, 19 March 2018, col 153.

5 Department for Exiting the European Union, The Future Relationship between the United Kingdom and the European Union, Cm 9593, July 2018, p 95, para 55 [accessed 17 July 2018].

6 The Committee published a similar report when it was set up in 2003: Merits of Statutory Instruments Committee, 3rd Report, Special Report: the Committee’s Methods of Working, Session 2003–04, (HL Paper 73).

7 Delegated Powers and Regulatory Reform Committee, 3rd Report, Session 2017–19 (HL Paper 22), para 1.

8 Constitution Committee, 3rd Report, Session 2017–19 (HL Paper 19), para 44.

9 On occasion, statutory instruments are subject to Commons-only procedure or may be subject to an enhanced scrutiny procedure.

10 House of Commons Procedure Committee, Scrutiny of Delegated Legislation under the European Union (Withdrawal) Bill: interim report, First Report, Session 2017–19, HC 386.

11 Ibid., para 18.

12 DPRRC, 12th Report, Session 2017–19 (HL Paper 73), para 54.

13 An amendment was made to the withdrawal Bill in the House of Lords, later rejected by the House of Commons, which would have made the sifting committees’ recommendations binding. The House of Commons Procedure Committee commented in its most recent report that “in place of this binding statutory requirement there is a strong political obligation on the Government to follow the recommendations of the respective sifting committees, or explain why”. See House of Commons Procedure Committee, Scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018 (Sixth Report, HC Paper 1395) para 51.

14 HL Deb, 19 March 2018, col 154.

15 HL Deb, 18 June 2018, col 1924.

16 For example, see the report of the JCSI on SI 2018/135 Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018 where the Committee reported the Regulations “for having been made using the inappropriate parliamentary procedure”. See Joint Committee on Statutory Instruments, 16th Report, Session 2017–19 (HL 101), HC 542-xvi.

17 See written evidence from the European Union Committee (TSC0001), paras 12 and 13, where the sifting mechanism is described in detail.

18 The DPRRC’s functions will contrast with that of the SLSC’s sifting function, however, in that the DPRRC makes recommendations about the level of scrutiny associated with the exercise of a power (and will therefore have in mind the furthest extent to which a power might be used) whereas the SLSC will be considering a single incidence of the exercise of a power.

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