Exiting the EU: scrutiny of delegated legislation - Further call for evidence

21 December 2017

The Procedure Committee invites written evidence on the operation of the proposed new sifting committee to consider certain statutory instruments proposed to be made under powers in the European Union (Withdrawal) Bill.

Overall scope of the inquiry

On 15 September 2017 the Procedure Committee announced its inquiry into Exiting the European Union: scrutiny of delegated legislation.

The scope of the inquiry is as follows:

  • the provisions being made for Parliamentary scrutiny of delegated legislation in the European Union (Withdrawal) Bill and in the subsequent "Brexit bills" announced in the Queen's Speech and expected to be introduced during the present two-year session of Parliament.
  • the adequacy of procedures in the House of Commons for appropriate scrutiny of such delegated legislation.

Phase 2 of the inquiry: scrutiny arrangements

The Committee is moving to the next phase of its inquiry, covering the operation in the House of Commons of the scrutiny mechanism provided for in the Bill.

Submissions are invited by Wednesday 7 February 2018 to address any or all of the following matters:

The sifting committee

  • The proposed (a) remit and (b) powers of the new sifting committee
  • The resources to be available to the committee
  • Matters which the committee should take into account when determining whether an instrument should be proceeded with under the affirmative procedure
  • Any other matters in relation to each instrument which the committee should consider as a matter of course with a view to reporting them to the House
  • Information about each instrument which the Government should provide to the sifting committee
  • Options available to the committee and to the House should the Government disagree with a committee recommendation on the use of the affirmative procedure
  • The process whereby external stakeholders may make representations to the sifting committee and other relevant select committees on each instrument
  • Collaboration between the sifting committee and departmental and other select committees in the scrutiny of proposed instruments
  • Collaboration between the sifting committee and the Joint Committee on Statutory Instruments
  • Collaboration with relevant committees of the House of Lords

Other Brexit-related bills containing delegated powers

  • Whether Ministerial discretion proposed over the choice of order-making procedure in other "Brexit bills" (such as the Trade Bill, Taxation (Cross-border Trade) Bill or the Sanctions and Anti-Money Laundering Bill [Lords]) merits a similar sifting system to determine the procedure applicable

Phase 1 of the inquiry: a sifting mechanism

The initial phase of the inquiry concentrated on the powers to enact delegated legislation claimed by the Government in Clauses 7, 8 and 9 of the European Union (Withdrawal) Bill and the procedures for Parliamentary scrutiny set out in Schedule 7 to the Bill. 

An interim report, dealing with issues arising from this phase of the inquiry, was published on 6 November.

Amendments to the Bill

On 12 and 13 December 2017 amendments 392 to 398 tabled by the Chair of the Committee and supported by Committee members of all parties were considered in Committee of the Whole House and made to the Bill.

They will be reflected in the print of the Bill "as amended in Committee" available on the Bill website at:

Proposals for temporary standing orders

The Leader of the House has, at the Committee's request, tabled to Future Business draft temporary standing orders to provide for the establishment and operation of a European Statutory Instruments Committee, the working title for the sifting committee envisaged in the Committee's interim report.

The text of the proposed standing orders is available on our website.

Provision in the Bill for a sifting mechanism

The amendments to the Bill provide for a sifting process as follows:

  • All regulations proposed to be made under the powers in clauses 7, 8 or 9 of the Bill, and which Ministers consider ought to be made under the negative procedure, shall be laid before the House of Commons.
  • During the ten sitting days after laying the Minister responsible may not make the instrument (i.e. sign it into law).
  • Within that period the Commons sifting committee may consider each instrument and report its recommendation that the instrument should be proceeded with under the affirmative procedure.
  • After the statutory ten days have elapsed the Minister may proceed with the instrument under either:
    • The affirmative procedure (i.e. the instrument requires a debate and a vote in both Houses before it may be made and brought into force) or 
    • The negative procedure (i.e. the instrument is made and may be brought into force, but it will be annulled if either House passes a motion to annul it within 40 days of it being laid)

NB: The amendments tabled by the Chair relate only to scrutiny in the House of Commons, and are intended to be without prejudice to any scrutiny arrangements the House of Lords may determine in its consideration of the Bill.

Submit evidence

Further information

Image: CreativeCommons / Dave Kellam

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