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Changing EU ‘exit day’: how might the Statutory Instrument be expedited through Parliament?

25 Mar 2019
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Now the UK and EU have agreed an extension to the Article 50 period beyond 29 March, ‘exit day’ in UK law needs to be changed by Statutory Instrument (SI). With just a few days to secure approval of the SI, its passage will need to be expedited through both Houses of Parliament.

Dr Ruth Fox, Director , Hansard Society
,
Director , Hansard Society

Dr Ruth Fox

Dr Ruth Fox
Director , Hansard Society

Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.

In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.

In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.

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As a matter of international law, the agreement to extend the Article 50 period reached between the EU27 and the UK at the European Council on 22 March means that the UK will not leave the EU on 29 March, regardless of any changes made to the UK statute book.

However, as we previously set out, to preserve legal clarity ‘exit day’ in UK law needs to be brought into line with the new Brexit date, through the use of a Statutory Instrument (SI).

Section 20(1) of the European Union (Withdrawal) Act 2018 (EU(W)A) defines ‘exit day’ as a specific date – 29 March 2019 at 11:00pm – but paragraph 14 of Schedule 7 to the EU(W)A provides that this definition of ‘exit day’ can be amended by an SI subject to the affirmative procedure.

The use of the affirmative procedure means that the SI has to be laid before, debated and approved by both Houses before it can have legal force.

Like all SIs the ‘exit day’ SI will not be amendable.

SIs subject to the affirmative procedure normally take six to eight weeks to complete their parliamentary passage, from the day they are laid before Parliament to the point at which they are approved by both Houses. Laying and securing the approval of both Houses for an SI in less than one parliamentary sitting week will thus require an expedited process.

The approval process in the House of Lords is marginally more demanding than in the House of Commons. The Upper House operates a scrutiny reserve: it requires that the Joint Committee on Statutory Instruments (JSCI) must report on an SI before the motion to approve it can be tabled. However, as explained below, there are precedents to dispense with this requirement if circumstances are urgent.

In the House of Commons, under Standing Order No. 118, a Statutory Instrument subject to the affirmative procedure is usually referred to a one-off Delegated Legislation Committee (DLC). These Committee debates are limited to 90 minutes (or 2.5 hours for SIs exclusively related to Northern Ireland) and are held on ‘consideration motions’ (‘That the Committee has considered the instrument’). The motion to approve the SI still has to be decided on by the whole House, in the Chamber, without debate and on a later day, thus adding to the time required to complete the process.

However, the Government can choose not to use the normal Delegated Legislation Committee route and instead have the SI debated on the Floor of the House. In view of the urgency and political importance of the ‘exit day’ SI, it is highly likely that this will be the route chosen.

House of Commons Standing Order No. 16(1) stipulates that debates in the Chamber on SIs should last no longer than 90 minutes. However, the government can move a Business Motion to dispense with this Standing Order and provide more time for debate.

If the ‘exit day’ SI is debated on the Floor of the House, MPs will vote on a motion to approve it at the end of the debate. Debating the SI in the Chamber rather than in Committee thus helps save time.

Normally, a motion for an SI to be debated in the Chamber would appear on the Order Paper and would therefore have been tabled by the rise of the House on the previous sitting day. If the government were to propose a debate on the SI of longer than 90 minutes, an accompanying Business Motion to this effect would also be tabled to dispense with Standing Order No.16(1) and propose an alternative period of time for debate.

The Leader of the House of Commons, Andrea Leadsom MP, made clear at Business Questions on 22 March that she will make a further business statement this week setting out how the government proposes to “provide time for consideration of the legislation to alter the date of exit”. This statement should clarify the approach the government plans to take, including how much time they propose to allocate for debate on the SI.

Approval of the ‘exit day’ SI by the House of Lords will be a little more complicated than by the Commons, but can still be achieved in one sitting day if necessary.

House of Lords Standing Order No. 72(1)(a) states that the approval motion for an affirmative SI cannot be moved until the Joint Committee on Statutory Instruments (JCSI) has laid its report on the SI before the House. Although the JCSI is a joint committee and is chaired by an MP, no such scrutiny reserve exists in the House of Commons.

The JCSI does not consider the policy merits of an SI. It looks at the technical qualities of an instrument and draws the special attention of each House to an SI if it has concerns in areas such as defective drafting or appropriate use of legislative power. Indeed, the Committee can report on any grounds which do not go to the merits of, or policy behind, the SI.

The JCSI’s Guidance to Departments states that the normal time-frame for consideration of an affirmative SI is that the SI should be laid two sitting weeks prior to the weekly Wednesday meeting at which the Committee will consider it, but that this can be shortened if the Committee’s legal adviser has had sufficient time to look at and comment on a draft of the SI in advance, and any points raised are satisfactorily addressed in the instrument that is then laid before Parliament.

Given the time pressures, it will not be possible for the ‘exit day’ SI to meet these scrutiny deadlines, so exceptional arrangements will need to be made.

The JCSI is not currently scheduled to sit this week, but it could do so if its members agreed and enough of them would attend for the meeting to be quorate. The current membership of the Committee is 14 (seven MPs and seven Peers), of which the quorum is two from each House, with the Chair counted as one of the two from the House of Commons. There is no provision for the Committee to approve a report on an SI without meeting (e.g. to consider the SI and approve the report by conference call). There are precedents for committees to approve publication of a report by correspondence, although we are not aware of any occasion on which the JCSI has done so.

The JCSI has, for many years, operated an informal ‘pre-laying scrutiny’ process for affirmative SIs, so it is possible that the Committee’s legal advisers were given sight of a draft of the ‘exit day’ SI some time prior to it being laid before Parliament. The Counsel to the Committee are permitted to comment and advise on any SI shown to them in draft by the government prior to it being laid before both Houses. The aim of this pre-laying scrutiny is to “help avoid difficulties about powers, drafting, etc. arising at a later stage, and assist both the Department and the Committee in minimising any delay in the passage of an instrument”. If the ‘exit day’ SI was shown to Counsel to the Committee early on, this will help the lawyers advise the JCSI members at short notice now the SI has been formally laid before Parliament.

Because the JCSI’s normal scrutiny requirements have been breached, the minister must write to the Chair setting out the reasons why the SI was not laid sooner and why expedited consideration is necessary. The Committee generally allows expedited consideration “only where compelling reasons” can be shown. In the circumstances, the case for urgency with the ‘exit day’ SI will not be a difficult one for the government to make or the Committee to accept.

If the Committee does have time to meet and report to the House, the approval motion can be taken immediately afterwards. Standing Order No. 72 does not specify that there should be an interval of time between the report being laid before the House and the approval motion being moved. Nor does the JCSI’s report have to be formally published and printed in the normal way, if there is not enough time to do so. The report must be placed in the Printed Paper Office (PPO) in the House of Lords, but there are no specific requirements regarding the form this must take. The report could simply be run off the clerk’s computer, photocopied and placed in the PPO. Committee staff can respond very quickly to events as required. However, as the JCSI is a joint committee, any arrangements will require the agreement of the Members and officials from the House of Commons.

The government could ask the House of Lords to dispense with Standing Order No. 72, so that the House could consider the motion to approve the ‘exit day’ SI without the JCSI having reported.

There is precedent for this. For example, in 1999 the Labour government moved a motion on 1 July and again on 14 July so that the Lords could consider an SI (or SIs) to pave the way for the setting-up of a power-sharing executive in Northern Ireland, as and when the inter-party talks in Belfast reached agreement. The then-Leader of the House of Lords, Baroness Jay of Paddington, having consulted with and secured the agreement of the opposition through the ‘Usual Channels’, moved motions providing for Standing Order 70 (now 72) to be dispensed with, to enable approval motions to be taken, notwithstanding that no report from the JCSI on the instruments had been laid before the House.

In the Upper House, debates on SIs subject to the affirmative procedure can be held either in Grand Committee or on the Floor of the House. Again, it is almost certain that the ‘exit day’ SI will be debated by Peers in the Lords Chamber. Unlike in the Commons, there is no time limit for the debate.

In the House of Lords, Peers can express their opposition or concern by seeking to amend the approval motion in a way that would have the effect of withholding the agreement of the House. Alternatively, they can table an amendment to the approval motion, or table a separate motion, either calling on the government to take a specific action in relation to the SI (but not preventing its approval), or putting on record a particular point of view with regard to the SI but without calling for any specific action to be taken by the government.

In theory, a Peer could filibuster the debate on the SI approval motion, because the House of Lords is self-regulating and Members can speak for as long as they wish. However, peer pressure will inevitably come to bear during the course of the debate to bring matters to an orderly conclusion. If necessary, a closure motion (‘That the Question be now put’) could be moved, to bring proceedings to a halt and permit the House to vote. This is done only in exceptional circumstances, and of course requires the support of a majority in the House.

On 14 March the House of Commons agreed by 412 to 202 that the government should request an Article 50 extension. It would therefore seem politically unlikely for one or both Houses to reject the SI implementing the outcome of this request.

To put rejection of an SI in context, the House of Commons has only rejected 11 SIs since 1950, and the House of Lords seven. This equates to less than 0.01% of the total number of SIs considered in that time.

Fox, R. (2019), Changing EU ‘exit day’: how might the Statutory Instrument be expedited through Parliament?, (Hansard Society: London)