Statutory Instruments scrutiny

Introduction

The European Statutory Instruments Committee (ESIC) will be scrutinising all the proposed negative instruments coming out of the EU (Withdrawal) Act 2018 in order to ‘sift’ them and recommend the appropriate parliamentary procedure that they should follow. The Government expects to lay approximately 600 of these instruments before March 2019.

The Committee welcomes comments, from individuals or organisations that might be affected, to help inform the ‘sifting’ process.

Why do we need your opinion?

The Committee receives various sources of advice from legal and policy experts, but also wants to hear from those affected by specific amendments to the law. That is why you will be asked to comment on specific statutory instruments rather than policy areas as a whole. Statutory Instruments will be published on this site as blog posts.

More details on how to submit comments can be found on the frequently asked questions page.

What is Secondary Legislation?

Secondary legislation is law created by ministers (or other bodies) under powers given to them by an Act of Parliament (the ‘parent’ or enabling’ Act).  It is used to fill in the details of Acts, or to make regular technical amendments. For example, governments often use secondary legislation to ban new substances in response to new information about their dangers by adding them to a list under the Misuse of Drugs Act 1971.

What is a statutory instrument?

Statutory instruments are documents drafted by a government department to make changes to the law and are the most common type of secondary legislation.

Parliament can either approve or reject an SI, but cannot amend it.  How Parliament considers SI depends on whether they follow the negative or affirmative procedure, which is usually set out in the ‘parent’ Act.  This is not the case for many of the powers in the European Union (Withdrawal) Act 2018 which gives wide powers to ministers to choose the appropriate procedure.

The affirmative procedure requires Parliament to actively approve the SI before it can be made (signed into law) and brought into effect as law, or occasionally to remain in law.  In the House of Commons they are debated in a Delegated Legislation Committee, or less commonly in the Chamber, before being approved by the whole House. Draft affirmative SIs can be stopped if either House votes against or rejects the Government’s motion calling for the SI to be approved. About 20% of SIs are laid under the affirmative procedure.

Negative SIs do not need active approval by Parliament and are usually made (signed) by the minister before being laid in Parliament.  They will automatically come into effect as law unless either House stops (annuls) them within a fixed period after they have been laid (usually 40 sitting days). About 80% of SIs are laid under the negative procedure.

The proposed negative statutory instruments

The European Statutory Instruments Committees purpose is to look at all the statutory instruments coming out of the EU (Withdrawal) Act 2018 which the Government proposes to take the negative route. This function is by some called “sifting”. Once the Committee has considered a proposed negative instrument it can choose one of two recommendations:

  1. To accept the Governments proposal of letting the statutory instrument go through the negative procedure
  2. To recommend that the statutory instrument should instead be subject to the affirmative procedure

The Government can upon receiving a recommendation choose to agree or disagree with the Committee and is under no obligation to accept the recommendation. However if the Government rejects a recommendation to “upgrade” a statutory instrument from the negative to the affirmative route, a Minister needs to explain why.

How much time do I have?

The Committee has 10 sitting days (a sitting day is when there is business in the Chamber of the House of Commons) to consider an instrument. This means that the deadline is quite short, as the Committee meets once a week and requires a few days to consider the instrument in preparation for the meeting. The deadline for each instrument will be clearly set out on the forum page.