We have previously discussed in detail how the EU (Withdrawal) Act will take a snapshot of the EU law which applies to the UK on exit day and use it to create a new category of domestic law to ensure legal continuity. One of the most controversial aspects of the EUWA is the power for Ministers to amend the EU laws thus retained through secondary legislation in the form of regulations.

The default position in the EUWA is that most regulations will be subject to the negative procedure. This provides the lowest level of Parliamentary scrutiny - usually there will be no debate by MPs before the regulations come into force. For some categories of regulations (such as those which create a new criminal offence) the EUWA requires the affirmative procedure which provides a higher level of scrutiny.

However, the EUWA also creates two sifting committees - one in each House - to examine all regulations that would ordinarily go through the negative procedure and to recommend greater Parliamentary scrutiny where appropriate.

These committees will provide businesses with an important additional mechanism to influence Parliamentary consideration of changes to the law in areas which affect them.

How will it work?

In the Commons, this task will be performed by a new European Statutory Instruments Committee (ESIC); in the Lords, the remit of the existing Secondary Legislation Scrutiny Committee (SLSC) will expand to accommodate the role.

Where regulations would ordinarily be subject to the negative procedure – and the Minister does not consider the affirmative procedure to be more appropriate – they will be laid before Parliament in draft. The sifting committees will have ten sitting days to consider whether to recommend the use of the affirmative procedure instead.

After the ten sitting days have elapsed, regardless of whether the committee has given a recommendation, the Minister will lay the regulations in their final form before Parliament, specifying whether they should be subject to the affirmative or negative procedure. The instrument then progresses through Parliament under the relevant procedure in the usual manner.

Although intended to provide a greater level of Parliamentary oversight, the sifting procedure is merely advisory and Ministers have the final say on whether to accept the committees' recommendations. If the Minister disagrees with a recommendation to upgrade to the affirmative procedure, he or she can proceed to lay the proposed negative instrument regardless, albeit that they must provide a justification to Parliament for doing so.

Of course, MPs or peers who still wish to demonstrate opposition to the legislative change, or secure a debate on the purpose and effect of the instrument once it is laid, can still do so by tabling a motion to annul the instrument under the negative procedure.

What criteria will the commitees apply?

The two committees will try to adopt a cohesive approach but will consider instruments separately and each apply their own criteria to assess whether a proposed negative instrument should be upgraded.

The key questions which the ESIC is likely to consider are the following:

  • Legal importance - will the regulations amend existing law or make new law in a way which is significant?
  • Political importance - is the government proposing a legislative change involving a substantive change in policy?
  • Overall significance - is a proposed legislative change, taken together with other proposals, significant enough to merit the affirmative procedure?

For SLSC, the principal issue will be whether the subject matter of the instrument, and the scope of any policy change effected by it, 'is of such significance that the House would expect to debate it'. This will include consideration of whether the instrument:

  • effects a significant policy change,
  • would cause significant divergence from the accumulated body of EU law and obligations,
  • changes the remit of a public authority, or
  • affects equality or human rights.

How can businesses have a say?

A list of the statutory instruments that have been laid under the EUWA can be found on a new Parliamentary website, which also gives details of the end date for the sifting procedure in respect of each instrument.

Businesses can provide comments to the SLSC by emailing hlseclegscrutiny@parliament.uk within at least 5 working days of the instrument being laid in draft. The SLSC also confirms that any comments arriving too late to be considered at the sifting stage will be taken into account during its usual policy scrutiny function.

Similarly, comments can be sent to the ESIC by emailing esic@parliament.uk. The ESIC has not provided guidance on the timeframe for doing this, but states that its team can provide assistance on deadlines.

Businesses should contact the committees to draw attention to regulations which concern them and which they think should be subject to greater Parliamentary scrutiny. Where this is secured, businesses may then seek to present their case against the proposed regulations to the committees that will consider them for the purposes of affirmative resolution (usually a Delegated Legislation Committee in the Commons and the Joint Committee on Statutory Instruments, although other committees may also be involved).