SLSC Sifting of proposed negatives
25 February 2020
The procedure was established by the EU (Withdrawal) Act 2018 but may now also used under the Retained EU Law (Revocation and Reform) Act 2023 and its use is limited to former EU legislation.
Unusually these Acts give Ministers a choice of procedure when making legislation. As a safeguard the Acts require that, where the negative procedure is chosen, the regulations will first be laid as "proposed negative instruments", which after a "sifting" process, will then be laid as normal statutory instruments (SIs).
The Acts also provide that committees in each House should "sift" these proposed negative instruments, to determine if any 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 is done by the Secondary Legislation Scrutiny Committee (SLSC), as an extension of its general task of scrutinising all SIs subject to parliamentary procedure.
At the initial stage, the Committee is focussed on the appropriateness of the procedure for the content of the proposed instrument; after sifting, all proposed negatives must be laid again and be subject to routine policy scrutiny in the normal way.
- Secondary Legislation Scrutiny Committee: Terms of Reference
- Instruments being considered at the next Committee meeting
The House of Commons has established a dedicated committee - the European Statutory Instruments Committee - to carry out the sifting process.
To track any particular proposed negative and whether it has yet been sifted or re-laid as an SI please see the Statutory Instrument Service. (see Show more options, then the drop down list of procedures)
How sifting works
Each committee has 10 sitting days, beginning the day after the proposed negative instrument is laid, to scrutinise the instrument and make its 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. To date no Minister has rejected a recommendation to upgrade.
The SLSC’s recommendation on any proposed negative is published in the front of its weekly report. Any instruments the SLSC has recommended for upgrade are also listed on a dedicated page of our website.
As is its custom the SLSC set out its proposed method for considering this new type of instrument when the procedure was introduced.
- 37th Report - Sifting “proposed negative instruments” laid under the European Union (Withdrawal) Act 2018: criteria and working arrangements (HTML)
- 37th Report - Sifting “proposed negative instruments” laid under the European Union (Withdrawal) Act 2018: criteria and working arrangements (PDF)
- Government response to the report on sifting
This was recently updated when the Retained EU Law (Revocation and Reform) Act came into force. Our 47th Report of Session 2022-23 confirms that the SLSC will continue to apply the same criteria when considering proposed negatives laid under this Act.