Brexit legislation shortcuts laid bare in Supreme Court papers
25 September 2019, by Matthew Holehouse
While the UK prime minister's comprehensive Supreme Court defeat over Parliament's suspension is occupying today's headlines, it is worth looking beyond them at the unflattering light the case shines on the drive to ready legislation needed for Brexit.
Prime Minister Boris Johnson’s decision last month to send lawmakers home for five weeks came as the legislature was occupied with the work of preparing the UK statute book for a withdrawal scheduled for Oct. 31.
In finding the prorogation unlawful yesterday, judges said Johnson had failed to consider how it would interrupt lawmakers’ scrutiny of Brexit-related legislation.
Written submissions to the court paint a critical picture of efforts to rewrite the UK rulebook to reflect its move from being an EU member state to a third country by the Oct. 31 deadline.
The transformation is being delivered through around 600 pieces of secondary legislation, mostly made over the past year under the EU (Withdrawal) Act 2018, which allows ministers to amend retained EU law in preparation for exit.
But the UK government's court submission revealed it intends to push through nearly 50 legal and regulatory amendments under a fast-track procedure, that will deny lawmakers prior scrutiny.
Around 35 pieces of secondary legislation — known as statutory instruments, or SIs — are planned to be enacted under the “made affirmative” procedure before exit day, the government told the court.
Earlier this month, 11 pieces of Brexit legislation were made under this procedure, including last-minute amendments to the post-Brexit competition regime; amendments to capital requirements, financial-sector rules on risk and payment services; and regulations on genetically modified food and trade in animal products.
In addition, five major pieces of draft primary legislation, intended to hand powers to the government to establish and operate new post-Brexit regimes, had fallen away part-way through their legislative process as a result of the prorogation, the government told the court.
Secondary legislation only usually enters into force after it has been presented to both houses of the UK Parliament, which have the opportunity to reject it. But under the “made affirmative” procedure, the legislation enters into law once signed by a minister. It is then presented to lawmakers, and lapses if not approved within 28 days.
The procedure is uncommon, and was used only five times in the 2016-17 session of parliament. It is typically only used where the parent primary legislation foresees the potential need for urgent rule-making in narrowly defined areas — such as to protect public health or prevent market abuses.
But in the case of the EU (Withdrawal) Act, ministers are granted broad powers to make the amendments to remedy “deficiencies” in the law ahead of Brexit.
The government wrote to the court that it was “well prepared” for exit on Oct. 31. “The government is only using the urgent, made-affirmative procedure for the limited number of SIs which are considered critical for day one of exit,” its submission said.
Many of the SIs subject to the fast-track procedure were necessary because of recent changes to the body of continually evolving EU law in the UK, it said.
The Public Law Project, a legal charity that intervened in the Supreme Court case, argued for the prorogation decision to be found unlawful for failing to consider that it would deny Parliament scrutiny of the legislation.
The use of the fast-track procedure for the SIs was a direct result of the prorogation and created an “unnecessary and self-induced urgency,” the charity argued, saying the prorogation was cited as justification in the government’s explanatory notes to one of the 11 SIs already published.
As a result, Parliament would likely not have the opportunity to scrutinize and give retrospective consent to some of the SIs until after the Brexit deadline of Oct. 31, the PLP told the court in a written submission.
Its research found the “enormous power” of the EU Withdrawal Act had been used to improperly deliver policy changes, and that SIs have lacked impact assessments or have weakened EU standards. Out of the nearly 600 Brexit SIs laid, around 65 were issued to correct mistakes in earlier iterations, including those to establish new regimes in pesticides and endangered species.
“With prorogation, and even less time for scrutiny, there is a significant chance that basic mistakes get missed and actual consequences will result,” the PLP said.
It told the court that the government still needs to bring into force a further 70 to 80 SIs to deliver a legally coherent EU withdrawal.
But this would likely grow under "an attempt to plug the legislative holes" as a result of the five pieces of draft primary legislation — covering trade, immigration, agriculture, fisheries and financial services — lapsing due to the prorogation, the charity told the court.
In a separate intervention, Michael Fordham, for the Welsh government, characterized the urgent amendments as operating on a “make-it-and-ask-questions-later basis.” Some of the areas they covered were supposed to have been subject to prior agreement with the government in Cardiff. “That has gone out the window,” he said.
The government argued that the prime minister had no legal obligation to consider the impact on lawmakers' scrutiny work when exercising his power to suspend Parliament. The EU Withdrawal Act “expressly contemplates” the possibility of the urgency procedure being used while Parliament is prorogued, and “represents Parliament’s policy choice.”
The court disagreed. They found a Downing Street memorandum justifying the prorogation "did not discuss the impact" on the "vital work" of scrutinizing the Brexit SIs. As such, the prime minister failed in his "constitutional responsibility" to have regard to "all relevant interests," the court said.
The court's decision to cancel the prorogation, clearing the way for Parliament to reopen today, three weeks earlier than planned, may have the immediate effect of granting lawmakers a little more scrutiny time.
But it does introduce additional uncertainty. Because judges have declared that the current session of parliament is still in force, the five pieces of unfinished primary Brexit legislation still stand, and are listed among the unscheduled future business on today’s order paper.
The UK government, having lost control of Parliament, is unlikely to attempt to push these forward. If the prime minister opts to prorogue parliament a second time, they will fall again.
Over the coming days, the Commons business managers will need to weigh whether the remaining time in the parliamentary calendar, taking into account a possible prorogation, still justifies the use of the urgency procedure.
A decision will also need to be made on whether the 14-day period of prorogation should still be counted toward the 28-day scrutiny period for the 11 urgent SIs laid in September. If so, they may struggle to gain approval in time.
They will also need to decide what, if any, additional SIs should be brought forward to address the gaps left by the primary legislation caught in limbo.
And thanks to the judges’ intervention, lawmakers disquieted by what the Supreme Court was told will now have greater opportunity to make their views known.