The Government's proposals are vast, time-pressured and subject to minimal parliamentary scrutiny.  Businesses have a matter of days to influence the outcome in a way that takes account of their interests or risk their priorities being overlooked in a way that could adversely affect their ability to operate in a post-no deal Brexit UK.

The House of Commons committee responsible for the scrutinising of Brexit SIs, the House of Commons European Statutory Instruments Committee (“ESIC”), has launched an engagement tool for stakeholders to provide comments on proposed SIs. 

What's the issue?

In the event of a no-deal Brexit, EU law will cease to apply in the UK on 29 March 2019.  The European Union (Withdrawal) Act 2018 (“EUWA”), enacted earlier this year, provides the legal basis on which many pieces of EU legislation will be transposed into UK law on Brexit day in order to mitigate some of the uncertainty caused if the UK leaves the EU with no deal.  Such EU legislation will become known as "retained EU law", a new species of domestic law in the UK.

The job of copying and pasting EU law into UK law is not a simple one.  Many EU laws cannot function in the same way once copied into the UK statute book.  The EUWA empowers the UK Government to enact SIs to correct deficiencies in retained EU law in any way the Government considers "appropriate". 

SIs are generally written and adopted by the Government and subject only to limited parliamentary scrutiny.  The Government predicted in July 2018 that it would need to pass around 800-1,000 Brexit SIs to make the necessary changes to existing legal and regulatory frameworks to ensure legal certainty in the event of a no-deal Brexit. 

So far, the Government has published around 100 SIs, at a rate of approximately four a day.  The Government publishes proposed SIs under the EUWA here, although this may not be a comprehensive list.

How do I engage?

At the stage at which SIs are published, there is no consultation process.  Many Brexit SIs have not been consulted on at all. Parliament has no power to amend the SIs themselves, but can recommend that the Government thinks again. 

Under the EUWA procedure, the ESIC and the equivalent House of Lords committee, the House of Lords Secondary Legislation Scrutiny Committee ("SLSC"), must 'sift' all proposed Brexit SIs to recommend whether the proposed SI should become law automatically unless annulled within 40 sitting days (under the 'negative' legislative procedure) or become law only after it is positively endorsed by Parliament (under the 'affirmative' legislative procedure).  In many cases, whether Parliament has the opportunity to debate and potentially vote down the Government's proposed SIs will depend on the ESIC and SLSC's recommendations.

Businesses looking to provide input on the Government's proposals should engage the ESIC and SLSC.  The ESIC's new engagement tool facilitates this, by allowing stakeholders to submit comments on a proposed SI addressing the following three questions:

1. Will this proposed instrument make a substantial change to how the law will operate in the UK in the future?

2. If so, what change will it make and what effect will that change have?

3. What are your reasons for considering that the changes made by the SI would have potentially significant consequences that should be debated by Parliament?

When should I engage?

Businesses should be actively monitoring the publication of draft Brexit SIs that relate to their operations and consider whether to provide comment on the proposals.

4. The ESIC has 10 sitting days from the date the proposed SI is laid to make its recommendation as to whether the SI should be subject to the negative or affirmative legislative procedure.  However, the ESIC often considers SIs earlier than necessary and recommends stakeholders email esic@parliament.uk to confirm deadlines for each individual SI to ensure comments are received in good time.  The ESIC's deadline for each SI is listed here.

5. Comments to the SLSC must be submitted within five working days of an SI being laid via email.

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