MPs set out how Commons committee should scrutinise Brexit legislation

09 July 2018

The House of Commons Procedure Committee today publishes its final report on Commons scrutiny of the detailed process of incorporating EU law into UK law to prepare for Brexit.

Over 800 statutory instruments to be laid by exit day in 2019

The European Union (Withdrawal) Act, which received Royal Assent on 26 June, gives powers to Ministers to make delegated legislation through the use of statutory instruments.  Ministers estimate that over 800 of these instruments will be laid before the House for scrutiny by exit day on 29 March 2019. The vast majority of them will be used to make changes to existing primary and secondary legislation under so-called ‘Henry VIII’ powers.

For an estimated 80 per cent of these instruments the Government will have the discretion, under the Act, to choose the procedure they will be subject to in both Houses. Only under the affirmative procedure does each House of Parliament get to debate and vote to approve the change in the law.

Many of the legislative changes will be minor and technical and the Government will propose that the negative procedure is used for them. In its earlier report the Procedure Committee argued that a committee of the House of Commons should have a say over the procedure to be used. The Government accepted this recommendation and agreed to amendments to the Withdrawal Bill, tabled by the Chair of the Committee, Mr Charles Walker MP, to establish a system for a committee to review Ministerial proposals for changes to legislation and recommend strengthened procedures where appropriate.

Details on how new sifting Committee should function

The Committee publishes proposed standing orders for a new committee, the European Statutory Instruments Committee. The remit of the new committee will be to examine each Government proposal for a “negative procedure” statutory instrument, and to recommend whether it should be upgraded to the “affirmative” procedure, whereby the proposed piece of legislation has to be approved by a vote of both Houses of Parliament.

Today’s report sets out in detail how this committee should function, together with a number of factors which the new committee may want to consider when deciding whether the instrument ought to be subject to the affirmative procedure. These include legal importance, political importance, and overall significance. The Procedure Committee recommends that the new committee should consider whether there is support in the House for debate on an instrument when considering whether the affirmative procedure should be used.

Given the large volume of statutory instruments that the committee will have to deal with, the Procedure Committee estimates that the Government will expect to lay between 35 and 45 instruments on average in each sitting week between the middle of July 2018 and February 2019. The Committee insists on a smooth and even flow of instruments to Parliament for scrutiny, to allow the new committee to scrutinise proposals as effectively as possible.

Chair's comments

The Chair of the Procedure Committee, Mr Charles Walker OBE MP commented:

"I am glad that the Government has taken on board the committee’s proposals for greater Parliamentary scrutiny of the process of enacting over 40 years’ worth of European legislation into UK domestic law.

The new European Statutory Instruments Committee will be a vital element of parliamentary scrutiny over the next few months. I urge the Government to respect the findings of the Committee, and to maintain their commitment to publish a written Ministerial statement whenever they disagree with the Committee.

I very much welcome the sifting system, which will allow the House to determine for itself which proposals for legislative change are important enough to merit debate and approval under the affirmative procedure. 

Ministers themselves estimate that the number of statutory instruments that will need to be put before Parliament will be over 800, spread over some 20 sitting weeks. There is a substantial scrutiny task ahead and it is vital that the committee we recommend is established without delay."

Further information

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