Sifting “proposed negative instruments” laid under the Retained EU Law (Revocation and Reform) Act 2023
1.Following the passage of the European Union (Withdrawal) Act 2018 (“the 2018 Act”), the terms of reference of the Secondary Legislation Scrutiny Committee (SLSC) were amended by the House to include the sifting of proposed negative instruments laid under sections 8, 9 and 23 of that Act.1 They were later further amended to include sifting of proposed negative instruments laid under section 31 of the European Union (Future Relationship) Act 2020 (“the 2020 Act”).2 The Retained EU Law (Revocation and Reform) Act 2023 (“the 2023 Act”), which received Royal Assent on 29 June 2023, contains similar sifting provision and, following a report by the Procedure and Privileges Committee,3 the House has agreed that proposed negatives instruments laid under that Act should also be included in the terms of reference of the SLSC.4
Sifting of proposed negative instruments
2.The sifting function applies to the exercise of powers–in the case of the 2023 Act, powers contained in sections 11, 12 and 14 of that Act–where a minister may choose whether instruments to be made using those powers should be subject to the negative or the affirmative resolution procedure. Ministerial choice is exceptional. Usually, the scrutiny procedure applied to the exercise of a delegated legislative power will be prescribed in the parent Act. So, as a safeguard in this exceptional circumstance, where a minister has a choice, the 2023 Act provides for a parliamentary scrutiny procedure–sifting–whereby committees in each House may consider, in draft, instruments where the minister proposes the negative procedure should apply, and may make a recommendation that the affirmative procedure should apply instead. In the House of Lords, the SLSC performs this function and in the House of Commons it is undertaken by the European Statutory Instruments Scrutiny Committee (ESIC). The powers are time-limited: the power conferred by section 11 expires at the end of 2023, and the powers conferred by sections 12 and 14 on 23 June 2026. At the end of 2023, what is now known as “retained EU law” will be called “assimilated law”.
Mandatory affirmative procedure
3.There are circumstances where the exercise of some powers under sections 11 (power to restate secondary retained EU law), 12 (power to restate secondary assimilated law or reproduce sunsetted retained EU rights, powers, liabilities etc.) and 14 (power to revoke or replace)5 are required by the 2023 Act to be subject to the affirmative procedure (and will not, therefore, engage the sifting procedure). These are:
- Regulations made under sections 11 and 12 which amend, repeal or revoke primary legislation (paragraph 5(2)(c)).
- Regulations made under section 14(2) which confer a power to make subordinate legislation (also known as tertiary legislation) or create a criminal offence (paragraph 5(2)(d)).
- Regulations made under 14(3) (paragraph 5(2)(e)). (These are regulations which “revoke any secondary retained EU law and make such alternative provision as the relevant national authority considers appropriate”.)
Other affirmative instruments
4.Even if not a mandatory requirement, a minister may decide that an instrument made under sections 11, 12 and 14 should be laid in draft and subject to the affirmative resolution procedure. These will not be subject to sifting and will be laid and scrutinised by the SLSC in the usual way.
Siftable instruments
5.Instruments under certain provisions under sections 11, 12 and 14 which the minister proposes should be made using the negative resolution procedure are subject to sifting. The procedure is set out in paragraph 6 of Part 2 of Schedule 5 to the 2023 Act. Where a minister proposes that the negative procedure should apply, the minister cannot make the instrument unless condition 1 and either condition 2 or 3 are met (paragraph 6(2)).
- Condition 1 is that the minister has made a statement in writing that in their opinion the negative procedure should apply and has laid before both Houses of Parliament a draft of the instrument and a memorandum setting out the statement and the reasons for their opinion.
- Condition 2 is that committees in the two Houses (the SLSC in the Lords and ESIC in the Commons) within 10 sitting days (“the relevant period”) have made a recommendation about the appropriate procedure in relation to the proposed negative instrument.
- Condition 3 is that condition 2 has not been met–that is, that the committees have not reported in the relevant period.
6.If either of the committees (the SLSC or ESIC) recommends that an instrument should be upgraded, but the minister disagrees, the minister must make a statement explaining why (paragraph 6(6) and (7)). The statement must be in writing and published in a way the minister considers appropriate. To date, the minister has not disagreed with any of the sifting decisions of the committees under the 2018 Act and 2020 Act. During the passage of the Retained EU Law Bill, the Minister, Lord Callanan, said, referring to the sifting procedure: “It is a tried and tested method of parliamentary scrutiny which, in my view, delivers good results for everyone and draws on the experience of our parliamentary committees. We will, of course, respect the judgment of the sifting committees relevant to the Bill, in the same way as we did for the EU withdrawal Act.”6 We welcome the Government’s commitment to adopting the same approach to sifting recommendations made under the 2023 Act as that applied to the 2018 and 2020 Acts.
Our approach to sifting under the 2023 Act
7.In 2018, when the terms of reference of the SLSC were extended to include the sifting of instruments under the 2018 Act, the SLSC published a report about how it would approach its consideration of proposed negatives.7 The SLSC concluded, amongst other things, that it would:
- consider each proposed negative instrument on its merits, taking into account the minister’s reasons for their opinion that the negative procedure should apply, and
- apply the overarching test: “is the subject matter of this instrument and the scope of any policy change effected by it of such significance that the House would expect to debate it?”
8.We propose to take the same approach in relation to proposed negatives laid under the 2023 Act. We shall also be looking keenly at the quality of the consultation that has been undertaken prior to the laying of the instruments.
Explanatory material
9.In order to discharge its sifting function effectively, and for the House to understand the basis of the SLSC’s decisions, it will be critically important that the explanatory material accompanying the proposed negative instrument should state clearly the context of the policy to be implemented by the instrument, including the legislative context. If, for example, the instrument is laid under section 11, then the explanation should include what is being restated, whether there are any differences between the restatement and what is being restated, and whether there is a broader context relevant to the SLSC’s assessment of an instrument. In 2018, the SLSC said: “[t]he Committee will apply the same rigour when scrutinising the explanatory materials accompanying proposed negative instruments laid under the [2018] Act as it does in discharging its current function … ”.8 This will remain the case in relation to the explanatory materials relating to proposed negative instruments laid under the 2023 Act.
Conclusion
10.We welcome the extension of our terms of reference, and we will seek to discharge this additional function to the high standard which the House expects. To assist us, we–in turn–expect explanatory material to be sufficiently complete to enable us, and the House and the wider public, to understand the significance of a proposed negative instrument and how it meets the requirements of the 2023 Act.
11.We also take the opportunity to encourage anyone who wishes to comment on a proposed negative instrument to make a submission to our generic email (hlseclegscrutiny@parliament.uk) as soon as possible, and—given that the SLSC must make its recommendation within 10 sitting days (as it did under the earlier Acts)—preferably within five working days of the instrument being laid.9
12.Finally, the powers under sections 11, 12 and 14, especially section 14, of the 2023 Act are significant and could be used to make substantial policy changes. Earlier this year, in February 2023, we published a report on the Retained EU Law (REUL) Bill, Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill,10 in which we commented on the effect of downgrading the status of direct principal retained EU legislation so that it could be amended by secondary legislation rather than primary legislation. In response, Lord Callanan said:
“Where the Government is reforming REUL in a way that fundamentally changes existing legislative and policy frameworks it has used, and will continue to use, primary legislation to make those changes”.11
13.We look to the Government to uphold this commitment to use primary legislation to make fundamental policy changes. Where we find that an instrument–whether a proposed negative instrument or an affirmative instrument–laid under the 2023 Act makes provision for a significant policy change, we will expect the minister to explain why it is appropriate to do so using secondary legislation rather than the more robust and accountable procedures applied to primary legislation. If we find the explanation unconvincing, we shall report to the House accordingly.
1 House of Lords Procedure Committee, 5th Report (Session 2017–19, HL Paper 163). See also HL Deb, 11 July 2018, cols 915–919.
2 The power in section 8 of the 2018 Act and the sifting function under section 31 of the 2020 Act ended on 31 December 2022. Section 9 of the 2018 Act was repealed by the 2020 Act. The sifting function under section 23 of the 2018 Act will not end until 31 December 2030, but few proposed negative instruments have been laid under this provision.
3 House of Lords Procedure and Privileges Committee, 6th Report (Session 2022–23, HL Paper 228).
4 HL Deb, 17 July 2023, cols 2052–5.
5 The power under section 14 is especially broad and enables a minister:
- to revoke any secondary retained EU law without replacing it (section 14(1)),
- to revoke and replace “with such provision” as they consider “to be appropriate and to achieve the same or similar objectives” (section 14(2)), and
- to revoke and “make such alternative provision” as they consider appropriate (section 14(3).
7 SLSC, Sifting “proposed negative instruments” laid under the European Union (Withdrawal) Act 2018: criteria and working arrangements” (37th Report, Session 2017–19, HL Paper 174).
8 Sifting “proposed negative instruments” laid under the European Union (Withdrawal) Act 2018: criteria and working arrangements”, para 69.
9 A list of instruments currently under consideration by the Committee is on our main web page.
10 SLSC, Losing Control? The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill: Government Response, (39th Report, Session 2022–23, HL Paper 194).