Under the new sifting procedure set out in Schedule 7 of the EU (Withdrawal) Act, SIs made under sections 8, 9 and 23(1) will be published in draft (along with accompanying explanatory documents) and will be subject to either the usual negative or affirmative scrutiny procedure. The only statutory restriction on the choice of scrutiny procedure is that SIs made under clauses 8 and 9 must be subject to the affirmative procedure if they:

• provide for any function of an EU entity or public authority in a Member State of making an instrument of a legislative character to be exercisable instead by a public authority in the UK;

• relate to a fee in respect of a function exercisable by a public authority in the UK;

• create, or widen the scope of, a criminal offence; or

• create or amend a power to legislate.

SIs that the government believes should be subject to the affirmative procedure will not be sifted. They will be subject to the usual scrutiny process for affirmative SIs – they must be debated and approved by both Houses before they can become law.

But all draft SIs* that the government proposes should be subject to the negative procedure will be sent to both the House of Lords Secondary Legislation Scrutiny Committee (SLSC) and the new House of Commons European Statutory Instruments Committee (ESIC) for sifting. Each committee will have 10 sitting days to consider the SI and, if it so chooses, recommend that it be subject to the affirmative scrutiny procedure rather than the negative procedure. Each Committee will determine its own criteria for deciding whether or not to recommend an upgrade in the scrutiny procedure, taking into account the purpose and requirements of the Act, as well as what they believe to be politically important and the likely demand among MPs for a debate.

At the end of the 10-day sifting period, those SIs the sifting committees believe have been correctly assigned to the negative scrutiny procedure will be laid before Parliament having been ‘made’ (signed-off) by the minister. These SIs will become law unless a motion is passed within 40 days by either House of Parliament to annul them.

However, when one of the sifting committees recommends an SI be upgraded to the affirmative scrutiny procedure, the government will have a decision to make: will it accept the committee’s recommendation?

If the government does accept the committee’s view then it will have to withdraw the draft negative SI and re-lay it as a draft affirmative SI. As with other affirmative SIs, it must then be debated and approved by both Houses before it becomes law.

If the government does not accept the committee’s upgrade recommendation then the government will have to lay a statement explaining why. It can then proceed with the SI as intended: having been made (signed off) by the minister the instrument will be laid before Parliament and will become law unless a motion is passed within 40 days by either House annulling it.

There are a number of problems with this process.

A key flaw of the EU (Withdrawal) Act procedure is that sifting committee recommendations are advisory, not binding.

In previous legislation which has included powers of similar breadth and scope to those in the EU (Withdrawal) Act (e.g. the Legislative and Regulatory Reform Act 2006, Public Bodies Act 2011 and Localism Act 2011), Parliament has made the exercise of those powers subject to a strengthened scrutiny procedure which obliges the government to accept the recommendation of the designated committee in each House to upgrade the scrutiny of an SI.

An amendment made to the EU (Withdrawal) Bill, proposed by Lord Lisvane (former Clerk of the House of Commons) and supported by the Hansard Society’s Chair, Lord Sharkey, would have made the sifting committee’s recommendations binding, bringing the EU (Withdrawal) Act procedure in line with existing strengthened scrutiny procedures. However, MPs voted to remove this amendment when the Bill returned to the House of Commons during ping-pong (consideration of Lords amendments). This means that there is little – other than the risk of a political row – to stop a minister ignoring the committee’s recommendation.

The House of Commons Procedure Committee suggests in its 9 July report on the sifting process that the ESIC could ‘choose to pursue the matter through correspondence with Ministers, oral evidence, and subsequent reports informing the House of its views’. It thus implicitly encourages members of the ESIC, if and when their scrutiny recommendation is rejected, to subject that SI to substantive scrutiny of their own. It remains to be seen whether this threat will prove to be an effective deterrent to any minister minded to ignore the conclusions of the sifting process.

Nothing in the sifting changes made to the EU (Withdrawal) Bill addresses the fact that the scrutiny procedures for both negative and affirmative SIs in the House of Commons are wholly inadequate and no longer fit for purpose (as we detailed in our report, ‘Taking Back Control’, after the Bill was introduced to Parliament last year).

An SI subject to the negative scrutiny procedure will become law unless a ‘prayer’ motion is passed within 40 days by either House to annul it. However, in the House of Commons, Early Day Motions (EDMs), which an MP must table in the form of a ‘prayer’ to object to a negative SI, are motions for which no fixed parliamentary time is allocated. Whether an MP’s objection to an SI is ever debated will therefore still lie almost entirely in the hands of the government, not the House of Commons. In the last full parliamentary session (2016-17), for example, 23 prayer motions were tabled of which only 10 were granted time for debate.

If the scrutiny of an SI is upgraded to the affirmative procedure it will be subject to the normal 90-minute debate by MPs in a Delegated Legislation Committee (DLC) or more rarely on the floor of the House of Commons. Historically, MPs have seen being assigned to a DLC as a ‘punishment’; the Procedure Committee optimistically envisages that EU (Withdrawal) SI debates will be livelier occasions. However, MPs serving on a DLC will still have limited access to information and support and the Committee will still vote only on a pointless ‘consideration’ motion.

Because the ESIC’s remit applies only to draft negative instruments, SIs that the government recommends be subject to the affirmative procedure from the outset will not be subject to the sifting process. They will go straight to a DLC. However, an SI that begins life as a draft negative SI and is recommended for upgrade to the affirmative procedure by the ESIC will be subject to some, albeit limited, scrutiny by that Committee. It will publish a report which may draw on evidence submitted to it by, for example, other committees of the House or external civil society groups. This evidence and the resulting report will be available to MPs when they consider the upgraded SI in the DLC debate. The value of this evidence base will inevitably vary from instrument to instrument but the fact that it will exist for some affirmative SIs and not others creates yet another variance in the scrutiny process.

This will all sit in sharp contrast to the position in the House of Lords, where the Secondary Legislation Scrutiny Committee (SLSC) sifts, scrutinises and reports on all statutory instruments.

As we get closer to exit day, the government can trigger an ‘urgent case’ procedure should they ‘by reason of urgency’ deem it necessary.

Urgent ‘made affirmative’ SIs will be laid before Parliament and come into immediate effect having been made (signed-off) by the minister. However, they will have to be approved by both Houses of Parliament within 28 days in order to remain in effect. The only constraint on the exercise of this power is that the government must table a written statement explaining the need for urgency.

The government can also choose to lay negative SIs under this urgent case procedure. These will not be subject to the ESIC sifting process because ‘urgent’ SIs are exempt.

This provision is important because by the end of January 2019 it is likely that there will be too little time before ‘exit day’ to subject draft negative SIs to the sifting procedure. It is difficult to be exact about the timeline until any recess dates between January and March 2019 are confirmed. However, by the end of January the government will likely have to either make all SIs subject to the ‘urgent made negative’ procedure, or reject any upgrade in the scrutiny procedure recommended by the ESIC. For some weeks before exit day, MPs may thus find that their sifting committee is bypassed entirely.

* Post-publication note: It has been brought to our attention that, rather than 'draft negative', a better term to use would be 'proposed negative' so as not to confuse it with the established 'draft negative' variant of the negative procedure. Under the new sifting procedure, negative SIs will be first laid as a proposal, comprising a draft of the instrument and other explanatory documents. Once the sifting period is over, ministers will lay the SI again, either as a 'made negative' or 'draft affirmative'.

Blackwell, J. (2018), EU (Withdrawal) Act SIs: will sifting make a difference?, (Hansard Society: London)