Brexit Bulletin—Brexit SI sifting process: what you need to know

24 Aug 2018 | 11 min read
Under the European Union (Withdrawal) Act 2018 (EU(W)A 2018), before certain proposed statutory instruments (Brexit SIs) are formally laid in Parliament, they have to go through a preliminary sifting process to determine the appropriate level of parliamentary scrutiny. Committees in both Houses of Parliament are responsible for this process and are inviting submissions from individuals and organisations to assist in this work. Although Parliament is currently in summer recess, a number of these instruments have been laid for sifting which is due to commence when Parliament returns in September 2018. Updates on the process, timescales and details of the latest drafts are outlined here.
The government’s legislative preparation for Brexit is expected to intensify after the summer recess, as departments start introducing Brexit SIs using the powers in the EU(W)A 2018. The key aim of these powers is to introduce legislation necessary to prepare for Brexit in any event—to ensure an orderly exit from the EU that effective in UK law, regardless of the outcome in the Brexit negotiations.Alongside the secondary legislation anticipated under the EU(W)A 2018, government departments are also working to progress further primary legislation, delivering necessary policy changes required as a result of Brexit. You can review progress on the broader legislative preparation for Brexit in our Brexit legislation tracker.Sifting process for proposed negative procedure Brexit SIs

EU(W)A 2018, s 8 allows the government to introduce Brexit SIs to deal with anticipated ‘deficiencies’ in retained EU law arising from Brexit. The main parliamentary scrutiny procedures for these instruments are set out in EU(W)A 2018, Sch 7.Where the government proposes to introduce Brexit SIs under these powers using the negative procedure (whereby instruments are laid in Parliament after being made and become law without debate unless there is an objection from either House), they first have to go through a sifting process to consider the suitability of that procedure.

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

The Commons European Statutory Instruments Committee (ESIC) was created specially as part of the sifting procedures introduced under the EU(W)A 2018. The ESIC was established shortly before summer recess and members appointed on 18 July 2018. The ESIC has published outline details of its sifting role and remit on its webpage, welcoming comments to help inform its work and considerations in the sifting process.The ESIC has welcomed external input, comments and engagement in the sifting process and it aims to establish a special engagement tool to help facilitate this. Until then, the ESIC suggests that anyone wishing to comment on a proposed Brexit SI should make a submission via email. To ensure that relevant comments are accounted for, the ESIC recommends that submissions:

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):

  1. Will the proposed Brexit SI make a substantial change to how the law will operate in the UK in the future?
  2. If so, what change will it make and what effect will that change have?
  3. What are your reasons for considering that the proposed Brexit SI would have potentially significant consequences that should be debated by Parliament?
Submissions to the Lords Secondary Legislation Scrutiny CommitteeThe Lords Secondary Legislation Scrutiny Committee (SLSC) has an established role in legislative scrutiny, in particular examining the policy merits of secondary legislation, but its terms of referencewere amended on 11 July 2018 to reflect its additional sifting role and responsibilities under the EU(W)A 2018.

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

Parliament is currently in summer recess and the sifting committees are therefore not sitting. When Parliament resumes on 4 September 2018, both of the sifting committees are expected to begin meeting on a weekly basis to scrutinise proposed negative Brexit SIs laid for sifting. The SLSC has already confirmed it will sit on 4 September 2018 to consider the drafts laid to date (see below).Here are details of the draft negative Brexit SIs laid for sifting so far:

Proposed Brexit SI Sifting Period Closes
Airport Charges (Amendment) (EU Exit) Regulations 2018 9 October 2018
Airports (Groundhandling) (Amendment) (EU Exit) Regulations 2018 9 October 2018
Civil Aviation Act 1982 (Amendment) (EU Exit) Regulations 2018 9 October 2018
Computer Reservation Systems (Amendment) (EU Exit) Regulations 2018 9 October 2018
European Parliamentary Elections etc (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) Regulations 2018 9 October 2018
European Research Infrastructure Consortium (Amendment) (EU Exit) Regulations 2018 9 October 2018
Freedom of Information Act 2000 (Amendment) (EU Exit) Regulations 2018 9 October 2018
Postal and Parcel Services (Amendment etc) (EU Exit) Regulations 2018 9 October 2018
Vehicle Drivers (Certificates of Professional Competence) (Amendment) (EU Exit) Regulations 2018 9 October 2018
Consumer Credit (Amendment) (EU Exit) Regulations 2018 10 October 2018
Design Right (Semiconductor Topographies) (Amendment) (EU Exit) Regulations 2018 10 October 2018
European Communities (Designation Orders) (Revocation) (EU Exit) Regulations 2018 10 October 2018
European Union (Definition of Treaties Orders) (Revocation) (EU Exit) Regulations 2018 10 October 2018
Feed-in Tariffs and Contracts for Difference (Amendment) (EU Exit) Regulations 2018 10 October 2018
Friendly Societies (Amendment) (EU Exit) Regulations 2018 10 October 2018
Groceries Code Adjudicator Act 2013, Small Business, Enterprise and Employment Act 2015 and Enterprise Act 2016 (Amendment) (EU Exit) Regulations 2018 10 October 2018
Return of Cultural Objects (Revocation) Regulations 2018 10 October 2018
Animal Health and Welfare (Miscellaneous Amendments) (England) (EU Exit) Regulations 2018 11 October 2018
Cultural Tests (Films, Television Programmes and Video Games) (Amendment) (EU Exit) Regulations 2018 11 October 2018
Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2018 11 October 2018
Health and Safety (Amendment) (EU Exit) Regulations 2018 11 October 2018
Seal Products (Amendments) (EU Exits) Regulations 2018 11 October 2018
Timber and Timber Products and FLEGT (EU Exit) Regulations 2018 11 October 2018
Trade Barriers (Revocation) (EU Exit) Regulations 2018 11 October 2018

Further information

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?

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