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Sifting of proposed negative instruments under the EU Withdrawal Act

25 February 2020


The EU (Withdrawal) Act 2018 gives Ministers wide powers to make regulations to deal with the "deficiencies in retained EU law" which may result from the UK's withdrawal from the EU. It allows them a choice of procedure and most regulations will first be laid as "proposed negative instruments", which after a "sifting" process, will be laid as statutory instruments (SIs).

The EU Withdrawal Act also provides that committees in each House should "sift" these proposed negative instruments, to determine if any put forward for the negative procedure contain material that would be more appropriate to the affirmative procedure (which requires a debate in each House). In the House of Lords, the sifting work will be done by the Secondary Legislation Scrutiny Committee (SLSC), building on its long-established work of scrutinising SIs subject to parliamentary procedure.

Further information on the SLSC's role can be found in the Committee's current full terms of reference. The House of Commons has established a new committee - the European Statutory Instruments Committee - to carry out the sifting process. 

How it will work

The committees will have 10 sitting days, beginning the day after the proposed negative instrument is laid, to scrutinise the instrument and make their recommendations. If either of the committees recommend that a proposed negative should be upgraded to the affirmative procedure, the Minister may either accept the recommendation or reject it - in which case the Minister must make a written statement explaining why. Any instruments we recommend for upgrade will be listed on a dedicated page of our website.

Our meetings will consider both proposed negatives for sifting (Stage 1) and our normal diet of Statutory Instruments (Stage 2). Stage 2 will include all affirmatives and all non-Brexit SIs, alongside those instruments that have already been through the Stage 1 process and have been formally laid as SIs. Commentary on both types will be included in the same weekly report. The status of proposed negatives can be followed using the SI Service (see link below).

The SLSC has conducted a short inquiry to seek views on the approach we should take when sifting SIs under the 2018 Act. Our inquiry report (37th Report of this session) was published in July.