Since the European Union (Withdrawal) Act 2018 ("2018 Act") came into force on 26 June 2018, the UK Government has published a large number of Brexit statutory instruments (SIs) under the 2018 Act. These are intended to deal with various legal issues that would arise from the UK's withdrawal from the EU and the need to make EU law fit for purpose in that context.

What is the procedure for SIs?

SIs are drafted by Government departments and are subject to either the "negative procedure" or the "affirmative procedure".

Only the "affirmative procedure" requires the SI to be actively approved by both Houses of Parliament, almost always before the SI can be made (i.e. signed by the responsible Minister) and brought into effect as law. In exceptional cases a SI can be "made affirmative", meaning it can be made and come into effect without approval, but will be revoked if not subsequently approved by Parliament within a specified time.

"Negative" SIs, however, do not need active Parliamentary approval. They are usually made by the responsible Minister before being laid in Parliament (in which case they are "made negative"), and automatically become law unless either House resolves to annul the SI within a fixed period, usually 40 sitting days. A made negative SI can be drafted so as to come into force any time before the 40-day period expires, in which case it will be revoked if subsequently annulled (though by convention an SI should if possible be laid in Parliament at least 21 days before it comes into effect).

A minority of SIs are laid in draft and cannot be made until the period for Parliament to object has expired (in which case they are "draft negative").

"Yes, Minister" or "No, Minister"?

Under the 2018 Act, Ministers are given broad powers to choose the appropriate procedure for the Brexit SIs. Because the choice is, with exceptions, in the hands of the proposing Minister, the 2018 Act (at Schedule 7, para 3) requires that SIs be subject to a "sifting" system to allow Parliament to review whether the choice of procedure is appropriate.

If a Minister chooses the negative procedure, the proposed SI and a memorandum explaining the Minister's reasons must be laid before both Houses. The draft SI will then be considered by the Commons' European Statutory Instruments Committee and the Lords' Secondary Legislation Scrutiny Committee. If each House makes a recommendation as to the appropriate procedure for the SI, or if they do not both do so within a 10-sitting-day 'standstill' period, the Minister is free to make the SI under the negative procedure.

In practice the Government has not been making SIs at the end of the standstill period, but rather is waiting until the Committees have confirmed that they are content that the negative procedure can be used. However, that may change if and when time becomes tighter in the lead-up to Brexit.

If either Committee recommends that the SI should instead be subject to the affirmative procedure, the Minister can still make it under the negative procedure but must give a written statement explaining why they disagree with the Committee's opinion.

In practice it is far more likely that the Government would simply follow the recommendation and use the affirmative procedure, and indeed has already done that for Brexit SIs in respect of which such recommendations have been made. Again, however, that level of co-operation may change if time becomes a factor, and indeed the 2018 Act allows for 'made affirmative' SIs in cases of urgency.

Brexit SI stakeholder engagement tool

All the draft Brexit SIs that the Government has put forward for the negative procedure are available here, each with a note of when the 'standstill' period will end (for 'open' SIs) or a record of the Committees' recommendation (for 'closed' SIs).

The Commons' European Statutory Instruments Committee has now launched an engagement tool through which stakeholders can make submissions on draft Brexit SIs that have been put forward for sifting. The site includes a list of all SIs up for consideration at upcoming Committee meetings (which at the time of writing are on 27 November and 4 December).

Stakeholders can submit their comments on SIs and propose that any SI should be "upgraded" to the affirmative procedure, in particular as a result of the nature or significance of the amendments proposed. Submissions should be made as early as possible after the draft SI is produced.

How many Brexit SIs are expected?

The Department for Exiting the European Union (DExEU) has said that it expects a total of 800 to 1,000 Brexit SIs to be required ahead of exit day on 29 March 2019 (not all of which would be made under the 2018 Act). DExEU recently provided an update on the expected "flow" of SIs in a letter to the chairs of each sifting committee and the Commons' Procedure Committee, which advised that the number of SIs laid each month was expected to be as follows:

  • 50-100 in October;
  • 150-200 in November;
  • 100-150 in December;
  • 100-150 in January;
  • 10-50 in February;
  • 10-50 in March.

The proportions each month that would be subject to sifting under the 2018 Act vary between 20% and 55%, which would leave large numbers of SIs subject to the affirmative procedure. It could therefore be challenging to deal with the SIs expected to be produced in February and March in time for exit day, and so the 'made affirmative' procedure may have to be used to avoid gaps in the statute book.

It is not yet clear whether the Government intends to stick to this time schedule after last week's draft UK-EU withdrawal agreement, including the transition or implementation period until 31 December 2020 that would give the process more time. However, the workload and timetable would not seem to allow for any pauses, so it seems likely that SIs will continue to be produced until and unless a withdrawal agreement and transition period is put beyond any doubt.