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Statutory instruments relating to Brexit

The European Union (Withdrawal) Act 2018 gives Ministers powers to create statutory instruments to help with a range of legal issues caused by the UK's exit from the EU. One of the main issues is deficiencies in retained EU law that may occur from the UK's exit.

Some powers require a Minister to use the affirmative procedure, such as providing for fees and charges. In addition, the affirmative procedure is sometimes required when a Minister uses a power to fix deficiencies, or implement a withdrawal agreement. The times when it is required are if the SI:

  • gives a UK public authority a legislative power;
  • involves a fee for a function which a UK public authority would exercise;
  • creates or widens a criminal offence; or
  • creates or amends a power to legislate.

Otherwise, the Minister is free to propose to use the negative procedure or can choose to use the affirmative procedure even if it is not required.

The 2018 Act set up a new sifting system in Parliament to check whether the choice of procedure is appropriate. This is because while affirmative SIs will always have a debate and require both Houses to actively approve, negative SIs are not guaranteed a debate.

How the new sifting system works

If the Minister chooses the negative procedure, they must lay before both Houses a proposed negative statutory instrument, which includes a draft of the proposed SI and a memorandum explaining why the Minister thinks the SI should be under the negative procedure.

Once laid, a committee in each House – the European Statutory Instruments Committee in the Commons, and the Secondary Legislation Scrutiny Committee in the Lords – has 10 sitting days to consider the proposed SI and recommend whether the SI should undergo the negative or affirmative procedure.

There are three possible results of the sift:

  • If both committees do not make a recommendation within the 10 sitting day period, the Minister is free to sign (make) the SI and lay it under the negative procedure;
  • The committees agree that the instrument should be under the negative procedure, meaning the Minister can make and lay the SI as above;
  • If either committee disagree and recommend the SI should be under the affirmative procedure.

If a committee recommends the SI should be under the affirmative procedure, the Minister can agree and lay the instrument in draft. However, the Minister is free to disagree with a committee and go ahead with the negative procedure, but first must make a statement in writing explaining why they disagree.