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On 17 March 2021, the European Statutory Instruments Committee’s temporary standing order was amended to include sifting statutory instruments laid under the EU (Future Relationship) Act 2020.

• Chair Andrew Jones to Leader of the House on sifting provisions in the EU Future Relationship Act 2020 (19 January 2021)
• Leader of the House to Chair Andrew Jones (16 March 2021)
• European Statutory Instruments Committee

The EU (Future Relationship) Act 2020 implements the Trade and Cooperation Agreement, Nuclear Cooperation Agreement and the Security of Classified Information Agreement, as agreed between the UK and the EU. It includes sifting requirements for statutory instruments which implement the Act. The wording of the sifting provisions, set out in schedule 5 paragraph 8, are almost identical to those contained in the EU Withdrawal Act 2018 which led to the creation of the European Statutory Instruments Committee.

ESIC Chair Andrew Jones MP wrote to the Leader of the House on 19 January 2021 to enquire whether it was the Government’s intention that ESIC undertake the sifting function described in the EUFRA 2020. The Leader of the House confirmed this in a letter dated 16 March 2021.

The Committee’s sifting function under the EU Withdrawal Act 2018 covers proposed negative instruments laid before the House in accordance with paragraphs 3(3)(b) or 17(3)(b) of schedule 7. These relate, respectively, to statutory instruments to be made under section 8(1) (the deficiency correcting power) and section 23(1) (consequential provision).

Sifting function in the EU Future Relationship Act 2020 (EUFRA)

The EUFRA 2020 contains sifting requirements for statutory instruments which implement the Act. Section 31 of the EUFRA 2020 sets out the implementing powers:

(1) A relevant national authority may by regulations make such provision as the relevant national authority considers appropriate—

(a) to implement the Trade and Cooperation Agreement, the Nuclear Cooperation Agreement, the Security of Classified Information Agreement or any relevant agreement, or

(b) otherwise for the purposes of dealing with matters arising out of, or related to, the Trade and Cooperation Agreement, the Nuclear Cooperation Agreement, the Security of Classified Information Agreement or any relevant agreement.

Schedule 5 describes the scrutiny procedure for statutory instruments laid under the implementing power. It states that the affirmative procedure should apply for any regulation made under section 31 which “amends, repeals or revokes primary legislation or retained direct principal EU legislation or creates a power to legislate”. Any regulations, made on or after IP completion day (31 December 2020), not falling within these conditions may, instead of the affirmative procedure, follow the negative procedure.

In its correspondence to the Leader of the House, the committee noted that the sifting function in EUFRA 2020 is limited to two years after IP completion day whereas the power to make regulations using the negative procedure is unlimited. This means that it would be possible for a Minister to make regulations using this power after the two-year period has elapsed, and those instruments would not be subject to the sifting process. In contrast, the committee’s sifting powers under the EUWA 2018 are directly linked to the powers to make regulations. The powers sunset at the same time.

You can read the updated text of ESIC’s temporary standing order in full here.

Further information

• About Parliament: Select committees
• Visiting Parliament: Watch committees