Why was the European Statutory Instruments Committee (ESIC) established?
The EU (Withdrawal) Act 2018 gives Ministers powers to make regulations to deal with the "deficiencies in retained EU law" which may result from the UK's withdrawal from the EU. This means that existing legislation made when the UK was a Member of the EU will be amended to reflect that the UK is no longer a member. These are called statutory instruments.
The EU Withdrawal Act provides that committees in each House should "sift" these proposed negative instruments, to determine if any put forward for the negative procedure contain material that would be more appropriate to the affirmative procedure (which requires a debate in each House). ESIC has this sifting role in the House of Commons.
What are Statutory Instruments?
Statutory instruments are the most common type of delegated legislation. About 3,500 become law each year. The Act that contains the power to make delegated legislation usually specifies what needs to happen to the statutory instrument for it to become law.
The statutory instrument must be formally presented to Parliament. It then usually takes one of two main routes:
- Negative procedure: the statutory instrument automatically becomes law unless there are objections to it within a specified period (usually 40 days).
- Affirmative procedure: the statutory instrument must be actively approved before it becomes law. It’s debated in a Delegated Legislation Committee or, less commonly, in the Chamber. Then the House decides whether to approve it.
Who lays Statutory Instruments?
All Government Departments can lay SIs, as can some professional organisations such as the General Medical Council. Laying is the process of formally depositing a copy in each House of Parliament. Once this is done the instrument should be published on the legislation.gov.uk website, run by the National Archives, within 24 hours.
Does the Government have to follow ESIC's recommendations?
The Committee scrutinises the policy merits of instruments and offers additional information and recommendations, but does not have any power to force the Government to make an instrument affirmative. In the instances when a recommendation by ESIC is rejected, the Minister needs to formally write to the Committee to explain the Governments reasoning.
Can the House of Commons amend Statutory Instruments?
No, the House of Commons can either accept or reject a Statutory Instrument but cannot amend it.
What happens after the Government accepts a recommendation to make a statutory instrument affirmative?
The instrument will be assigned a delegated legislation Committee. The Committee membership is usually 17 MPs, plus an impartial Chair. The Selection Committee appoints the members who sit on this Committee. Under rules agreed in September 2017, the Government will have a majority on Delegated Legislation Committees with an odd number of members in the 2017 Parliament. The Speaker appoints the Chair from the Panel of Chairs (a group of MPs nominated for this purpose).
The Committee includes at least one minister and at least one spokesperson from the official Opposition. Sometimes a spokesperson from the third largest party is a member as well.
This Committee can discuss the instrument for an hour and a half, unless the instrument applies specifically to Northern Ireland, then it can be debated for two and a half hours. The motion considered by the Committee is “that this House has considered [name of instrument”. Even if there is a vote in the Committee, a division, and the Committee votes that the Committee has not considered the instrument – the instrument will be put on the order paper for approval by the whole House in the chamber.
If the instrument is objected to in the chamber it will be voted on in a so called deferred division. A deferred division takes place on Wednesdays and Members have to go cast their votes during a specific time period. If the instrument is voted down here, it falls (or is thrown out) and cannot be brought back in the same session.
What happens after the Government rejects a recommendation to make a statutory instrument affirmative?
The Minister in charge of the instrument has to explain to the Committee why the Government has decided to reject their recommendation in a written statement. The instrument then remains negative, which means that it will pass in to law unless it is objected to in either House during a specific time period.