The Retained EU Law [Revocation and Reform] Act 2023 provides ministers with powers to make delegated legislation relating to retained EU law and assimilated law. For most statutory instruments introduced under the Act, the Government decides whether the instruments are subject to the affirmative procedure or the negative procedure, depending on what they are intended to do.
Affirmative statutory instruments introduced under the Act follow the usual process for affirmatives.
Negative statutory instruments introduced under the Act must be laid (formally presented) first as proposed statutory instruments. The Government must also lay an explanatory memorandum, setting out their reason for thinking the negative procedure should apply.
The European Statutory Instruments Committee—a cross-party select committee of 16 MPs—examines all proposed negative statutory instruments in the House of Commons. It has 10 sitting days (starting the sitting day after the proposed instrument is laid) to recommend whether the proposed negative statutory instrument should instead be subject to the affirmative procedure. A sitting day is a day when the House is meeting.
The House of Lords has a similar committee process for proposed negative statutory instruments introduced under the Act.
The Government don’t have to follow the Committees’ recommendations, but if they don’t they have to explain why.
Once a proposed negative statutory instrument introduced under the Act has gone through the sifting stage, it follows the usual process for a negative statutory instrument.
The Committee also has a similar sifting role under the European Union (Withdrawal) Act 2018 but the role has effectively ceased. It last considered a proposed negative under that Act on 1 November 2022.