Brexit Bulletin—Brexit SI sifting process: what you need to know
The European Statutory Instruments Committee in the House of Commons and the Secondary Legislation Scrutiny Committee in the House of Lords will be responsible for the sifting procedure, which is outlined in EU(W)A 2018, Sch 7, para 3.
The sifting committees will have ten sitting days (from the day after each Brexit SI is laid for sifting) to scrutinise the provisions and make recommendations on the appropriate parliamentary procedure. The recommendations will be set out in weekly reports published by the committees on their respective webpages (see below).
If either committee recommends that a proposed Brexit SI should be upgraded to the affirmative procedure, the government may accept the recommendation or reject it. In the latter case, the minister responsible must provide an explanation in the form of a written statement.
For further background reading, see News Analysis: European Union (Withdrawal) Act 2018—the role of secondary legislation.
Submissions to the Commons European Statutory Instruments Committee
relate to a single proposed Brexit SI
include the title of the proposed Brexit SI in the subject of the email
- highlight provisions which warrant scrutiny under the affirmative procedure (either under the terms of the EU(W)A 2018, or for any other reason)
- include the name and organisation of the contact making the submission
The ESIC also suggests providing comments in response to the following questions (max 300 words for each):
- Will the proposed Brexit SI make a substantial change to how the law will operate in the UK in the future?
- If so, what change will it make and what effect will that change have?
- What are your reasons for considering that the proposed Brexit SI would have potentially significant consequences that should be debated by Parliament?
Through its reports, the SLSC draws attention to SIs which it considers may be significant, interesting, flawed or inadequately explained. The SLSC has published on its webpage outline details of its additional sifting role and remit, which is additional to existing scrutiny role. It differentiates these roles by referring to sifting as ‘Stage 1’ and policy scrutiny as ‘Stage 2’.
The SLSC conducted an inquiry on its approach to sifting, setting out its proposed criteria and working arrangements in its report: Sifting “proposed negative instruments” laid under the European Union (Withdrawal) Act 2018: criteria and working arrangements. The overarching test that the SCLC will apply for sifting is as follows:
‘...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?’
The SLSC intends to apply a ‘presumption of the affirmative procedure’ where a proposed Brexit SI contains significant amendments to primary legislation, or retained direct principal EU legislation (which is defined in EU(W)A 2018, s 7(6) and includes EU Regulations the UK intends to retain). This presumption is rebuttable by a ‘full and convincing explanation’ in favour of the negative procedure.
Among the report findings, the SLSC noted that external stakeholders should be able to provide input. Specific guidance is available for anyone looking to make a submission. The SLSC is interested in stakeholder views on the strengths and weaknesses of the proposed legislation, eg whether it will be understood, effective, or result in unintended consequences. Submissions should be in plain English with terms and acronyms explained.
The SLSC suggests that anyone wishing to comment on a proposed Brexit SI should make a submission via email as soon as possible and preferably within five working days of the instrument being laid for sifting. The SLSC notes that any submissions received out of time for Stage 1 scrutiny (sifting) will be taken into account when Stage 2 (policy scrutiny), takes place.
Key dates and drafts laid for sifting
For further information on legislation introduced as part of the UK government’s domestic preparation for Brexit, see: Brexit legislation tracker, which includes a Brexit SI database collating details of Brexit SIs laid before Parliament. This tracker is available to view in the Brexit toolkit under Brexit Trackers and Timelines.
Updates on Brexit legislation are also alerted via current awareness updates and highlights. For more detail on setting up Brexit-related alerts, see Q&A: How do I sign up for Brexit alerts?