Q&As

What is the sifting process for Brexit legislation?

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Published on LexisPSL on 28/09/2018

The following Public Law Q&A provides comprehensive and up to date legal information covering:

  • What is the sifting process for Brexit legislation?
  • Main scrutiny procedures for Brexit SIs
  • Sifting process for proposed negative procedure Brexit SIs
  • Submissions to the Commons European Statutory Instruments Committee
  • Submissions to the Lords Secondary Legislation Scrutiny Committee
  • Tracking Brexit legislation

Under the European Union (Withdrawal) Act 2018 (EU(W)A 2018), before certain proposed statutory instruments (Brexit SIs) are formally laid in Parliament, they have to go through a preliminary sifting process to determine the appropriate level of parliamentary scrutiny. Committees in both Houses of Parliament are responsible for the sifting process and are inviting submissions from individuals and organisations to assist in their work.

Main scrutiny procedures for Brexit SIs

EU(W)A 2018, s 8 allows the government to introduce Brexit SIs to deal with anticipated ‘deficiencies’ in retained EU law arising from Brexit. The main parliamentary scrutiny procedures for Brexit SIs introduced by government ministers are set out in EU(W)A 2018, Sch 7 Pt 1 (with variations for instruments made by or jointly with the devolved administrations). They include:

  1. negative procedure―laid in Parliament after being made, subject to annulment within 40 days by either House of Parliament

  2. draft affirmative procedure (also referred to as affirmative procedure)―laid in draft and approved by a resolution of both Houses of Parliament before being made

  3. made affirmative procedure (for urgent cases)―laid in Parliament after being made but must be approved by a resolution of both Houses of Parliament within 28 days

Brexit SIs must be made under the draft affirmative procedure, where they:

  1. transfer an EU legislative function to a UK body

  2. relate to fees in respect of functions exercisable by a

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