The European Union (Withdrawal) Bill: scrutiny of secondary legislation (Schedule 7)

This briefing paper has been prepared for day 7 of the Committee Stage of the European Union (Withdrawal) Bill 2017-19 (EUW Bill) in the House of Commons.

It addresses Schedule 7 of the EUW Bill which sets out how the Government wants Parliament to scrutinise and, where necessary, approve secondary legislation made under the Bill.

The HC Library’s Briefing, European Union (Withdrawal) Bill (CBP8079), covers all of the provisions in the Bill, and was published on 1 September 2017.

Schedule 7 specifies that regulations that do certain things (such as establish a new public body or create a criminal offence) would be subject to the draft affirmative procedure. Other regulations would be subject to the negative resolution procedure, although ministers can choose to lay such regulations in draft.

Government's proposals for scrutiny of delegated legislation under the Bill

The Government proposes that parliamentary scrutiny of these SIs should be in line with current procedures. The Bill, as introduced, does not establish any novel requirements for parliamentary scrutiny or approval.

• SIs subject to the negative procedure would be made and come into force without parliamentary action but they could be annulled, on a motion of either House;
• SIs subject to the affirmative procedure would be debated (usually by a delegated legislation committee in the House of Commons, and in the Chamber in the House of Lords) and could only be made after being approved by both Houses of Parliament;
• Under an “urgent procedure”, SIs subject to the affirmative procedure could be made and come into force before parliamentary approval is given. In this case, if the regulations were not approved by both Houses within one month of being laid, they would cease to have effect.

In no case would Members of Parliament or members of the House of Lords have any opportunity to amend the regulations brought forward by the Government. If Members objected to specific provisions, the whole regulation would need to be not approved or annulled in order to prevent those provisions having effect.

There has been widespread acceptance that a method is needed that allows regulations to implement the legislative consequences of the leaving the EU speedily and flexibly. However, concern has been expressed that Parliament has little oversight of, and no opportunity to revise, such regulations.

Reports from committees in both the House of Commons and the House of Lords have recommended strengthened scrutiny procedures. Amendments have been tabled to provide for such procedures.

Procedure Committee recommendations for sifting delegated legislation

The Procedure Committee recommended “the establishment of a committee to examine the legislative changes the Government proposes and identify those of political and/or legal importance”. This new House of Commons committee would adopt the working methods of the European Scrutiny Committee: it would review (sift) each SI laid under the EUW Bill and recommend further consideration (debate in a DLC or on the floor of the House) for any SI that was either politically or legally sensitive. The Procedure Committee said that the scrutiny committee should have a “defined period” to scrutinise each SI. The Procedure Committee noted that the ESC’s work “is effectively underpinned by the scrutiny reserve … which injuncts Ministers against further action on a legislative proposal until either the Committee has cleared it from scrutiny or the further consideration recommended in the House has taken place”.

On 7 December 2017, the Procedure Committee issued a press release announcing that its Chair, Charles Walker, had tabled amendments to the Bill and that he would propose Standing Order to create a European Statutory Instruments Committee. The role of the sifting committee differs from that proposed in the Procedure Committee’s report. The press release outlined how it would operate:

The Procedure Committee’s amendments provide that every statutory instrument to be made via the negative procedure under the main law-making powers in the Bill will be laid before the House of Commons in draft by Ministers and sent to a Commons committee for consideration.

The new committee, a so-called ‘sifting committee’, will have the job of looking at each of these instruments and recommending which ones require the affirmative procedure instead (i.e. requiring debate and a vote in the House before they became law). The committee would have ten sitting days to make this recommendation.

STOP PRESS (12 December 2017)

The Chairman of Ways and Means’ selection and grouping of amendments for Day 6 of debate in Committee of the whole House on the European Union (Withdrawal) Bill 2017-19 (EUW Bill) has been published.

The Chairman of Ways and Means has confirmed that amendments relating to Schedule 7 will be debated on Day 6 but will not be decided upon until Day 7.

Procedure Committee amendments

On 7 December 2017, the Procedure Committee issued a press notice announcing that Charles Walker, it Chair, would table amendments to provide for a sifting committee to scrutinise SIs laid under the EUW Bill. The sifting committee would be able to recommend that any SI laid that was subject to the negative procedure should instead be subject to the affirmative procedure and require a vote in the House before it could become law.

Charles Walker has tabled amendments 392-398.

On 11 December 2017, it was reported that the Government would accept the Committee’s amendments.

Separately, Andrea Leadsom, Leader of the House of Commons, has tabled a Temporary Standing Order that provides for the establishment of the sifting committee – the European Statutory Instruments Committee (Future Business B, Item 47, 12 December 2017).