Scrutiny of delegated legislation made under the European Union (Withdrawal) Act 2018

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32.3Section 1 of the European Union (Withdrawal) Act 2018 provided for the European Communities Act 1972 to be repealed on Exit day. To ensure legal continuity, ss 2–4 of the Act provided that EU-derived domestic legislation would continue to have effect, EU legislation with direct effect would form part of domestic law and that, with certain exceptions, any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before Exit day, were recognised and available in domestic law by virtue of s 2(1) of the European Communities Act 1972, continued.

Retained EU law can be varied by Act of Parliament, but Ministers also have power to make a very broad range of amendments to primary or secondary legislation by statutory instrument. Ministers may make regulations to deal with deficiencies in retained EU law arising from withdrawal within two years of Exit day (s 8) and to make legislative changes to implement the exit agreement in relation to those measures which should be in place for Exit day (s 9).1 Corresponding powers were given to devolved authorities (s 11). Ministers could also make consequential or transitional provisions for a period of up to ten years following Exit day (s 23).

The nature of the order-making powers are set out in sch 7 of the Act. Some instruments will always be subject to the affirmative procedure. Broadly speaking they are:

  1. instruments transferring an EU legislative power to a UK body;
  2. instruments relating to fees;
  3. instruments which create or widen the scope of a criminal offence;
  4. instruments which create or amend a power to legislate (not including repealing or revoking such a power).2

In addition, an instrument laid under s 9 to amend the date of Exit day is subject to the affirmative procedure.3

Where a Minister decides that, for reason of urgency, an instrument exercising powers under (a) to (c) above subject to the affirmative procedure must be made and brought into force before the regulations have been approved by both Houses, the instrument may be made and brought into force before being laid before Parliament, but must be approved by resolution of both Houses within 28 days of the date of laying if it is to remain in force. An instrument made under the urgent procedure must contain a declaration of urgency and is not subject to a sifting procedure (see below).4

In other cases, the default will be the negative procedure save that the Minister will have a discretion as to whether to use affirmative procedure in its place. There are mechanisms for scrutinising and influencing this ministerial choice.

The Act provides that before proceeding under the negative procedure, draft regulations must be laid before Parliament accompanied by a statement that the Minister considers that the negative procedure is appropriate, and a memorandum from the Minister explaining the reason for choosing that procedure. If a period of ten sitting days has passed without the relevant committees of the House of Commons and the House of Lords making a recommendation as to the procedure used, the Minister may proceed.5

If such a committee recommends the affirmative procedure, the Minister may accept that recommendation. If they wish to proceed with the negative procedure despite the committee's recommendation they may do so, but must make and publish a statement setting out why they do not agree with the recommendation of the committee, or, if they fail to make such a statement, why they have failed to do so.6

In the Commons, the European Statutory Instruments Committee was established7 to examine and report on:

  1. any of the following documents laid before the House of Commons in accordance with paras 3(3)(b) or 17(3)(b) of sch 7 to the European Union (Withdrawal) Act 2018:
    1. a draft of an instrument; and
    2. a memorandum setting out both a statement made by a Minister of the Crown 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 (the negative procedure) and the reasons for that opinion, and
  2. any matter arising from its consideration of such documents.

Its remit was later extended to include certain documents laid under the European Union (Future Relationship) Act 2020.

Paragraph 2 of the Committee’s standing order states that in its consideration the Committee shall include in respect of each proposed negative instrument:

  1. whether it contains provisions which, under the European Union (Withdrawal) Act 2018 (paras 1(2) or 10(2)), require it to be subject to the affirmative procedure; and
  2. whether it otherwise appears to make an inappropriate use of the negative procedure.

The Procedure Committee suggested that in coming to a determination under paragraph 2(b) the European Statutory Instruments Committee should consider:

  • whether the instrument proposes a change which is legally important—that is, whether it proposes to amend existing law or make new law in a way which is significant;
  • whether the instrument is politically important—for instance, whether the Government is proposing a legislative change which involves a change in policy which merits further debate before it is approved;
  • whether a proposed change in legislation, taken together with other proposals, is significant enough to require further scrutiny.

The Procedure Committee also considered that the Committee should consider the level of interest in any debate if it recommended the affirmative procedure.8

Before reporting on any document, the Committee shall provide to the government department concerned an opportunity to provide orally or in writing to it or any sub-committee appointed by it such further explanations as the Committee may require except to the extent that the Committee considers that it is not reasonably practicable to do so within the period provided by the Act (Standing Order No 4).

The Standing Order states that it shall be an instruction to the Committee that it shall report any recommendation that the affirmative procedure should apply within the period specified by the Act.

The outcome of the Committee's considerations is reported to the House via the Votes and Proceedings on the days of its meetings, and in addition the Committee makes narrative reports where it recommends that an instrument be subject to the affirmative procedure.9

The Committee is appointed under a temporary standing order, with effect until the end of the current Parliament. In any event, the relevant provisions of the standing order will lapse as the power to make regulations under ss 8, 9 or 23(1) of the European Union (Withdrawal) Act 2018 falls away and when the relevant provisions under the European Union (Future Relations) Act 2020 relating to sifting by parliamentary committees no longer apply.10

In the House of Lords, the task of sifting instruments laid under ss 8, 9 or 23(1) of the European Union (Withdrawal) Act 2018 is undertaken by the Secondary Legislation Scrutiny Committee.11 To that end, the Committee has been given power to appoint sub-committees and to co-opt members to those sub-committees. This power will lapse on expiry of the power to make the relevant instruments under the Act. Sub-committees share the main Committee's general powers such as to send for persons, papers and records, appoint specialist advisers and to report from time to time.12

Footnotes

  1. 1. The powers under s 9 expire on Exit day.
  2. 2. European Union (Withdrawal) Act 2018, sch 7(1).
  3. 3. European Union (Withdrawal) Act 2018, sch 7(10)(1).
  4. 4. European Union (Withdrawal) Act 2018, sch 7(19)(2).
  5. 5. See European Union (Withdrawal) Act 2018, sch 7(17) and (11) for the calculation of sitting days.
  6. 6. European Union (Withdrawal) Act 2018, sch 7(17)(7)–(9).
  7. 7. Temporary Standing Order, Votes and Proceedings, 16 July 2018 and 20 February 2020; see para 38.71 for details of the Committee's membership and powers.
  8. 8. House of Commons Procedure Committee, Sixth Report of Session 2017–19, Scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018, HC 1395.
  9. 9. For example, see Votes and Proceedings, 5 September 2018; and European Statutory Instruments Committee, First Report of Session 2017–19, HC 1532.
  10. 10. Votes and Proceedings, 16 July 2018, 3 February 2020, 17 March 2021.
  11. 11. See para 40.50.
  12. 12. House of Lords Procedure Committee, Fifth Report of Session 2017–19, European Union (Withdrawal) Act 2018: Sifting of proposed negative instruments by the Secondary Legislation Scrutiny Committee, Consideration of Commons Amendments, Grand Committees on Questions for Short Debate, HL 163.