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Scrutiny of Statutory Instruments in the spotlight following Supreme Court judgement

7 Oct 2019
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Prorogation in the House of Lords. (UK Parliament (CC BY-NC 2.0))

The Supreme Court’s judgement that the government’s prorogation of Parliament was unlawful was due in part to concern that the legislature’s ability to scrutinise Statutory Instruments would be compromised. But as ‘exit day’ nears, and with a new, shorter prorogation planned, the inadequacies of the parliamentary scrutiny process for SIs become ever starker.

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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The Supreme Court found that “a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive” (paragraph 50).

In evidence to the Supreme Court, one of the interveners, the Public Law Project (PLP), argued that in proroguing Parliament for so long, the Prime Minister had failed to have due regard for the impact that this would have on the “special parliamentary controls devised by Parliament in the European Union (Withdrawal) Act 2018”. This referred to the sifting process whereby designated committees in both Houses of Parliament assess whether a Statutory Instrument (SI) made under the Act and subject to the negative scrutiny procedure should be upgraded to the affirmative scrutiny procedure, and therefore have to be actively approved by both Houses before it can become law.

The Public Law Project has been monitoring Brexit SIs since the turn of the year as part of its SIFT (Statutory Instruments: Filtering and Tracking) project, using the Hansard Society’s Statutory Instrument Tracker to support its research. In its submissions to the Court, PLP utilised data derived from our SI Tracker to support its arguments.

PLP argued that as a consequence of the lengthy prorogation, the government would have to resort to greater use of the ‘urgency procedure’ in the European Union (Withdrawal) Act 2018, whereby an SI can become law before it is scrutinised by Parliament and can remain in force for 28 days after being made by the minister, when it will fall unless approved by both Houses. This, PLP argued, would have the effect of circumventing parliamentary scrutiny and denying parliamentarians “the proper opportunity to debate secondary legislation of real moment amending primary legislation.”

The Supreme Court justices clearly found this argument compelling. The President of the Court, Lady Hale, noted in her statement announcing the judgement on 24 September that the only evidence provided by the government to justify the prorogation decision was a memorandum from the Prime Minister’s Director of Legislative Affairs, written on 15 August. As Lady Hale stated, this memorandum “does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to achieve an orderly withdrawal from the European Union, with or without a withdrawal agreement on 31 October.”

Nearly a fortnight from the conclusion of the Supreme Court case, events have moved on. A new prorogation is planned to take effect from the close of parliamentary business on Tuesday 8 October, suspending Parliament for two sitting days (assuming that neither House would have sat on Friday) and seeing it resume with a Queen’s Speech at the start of a new Session on Monday 14 October. One consequence of this is that a clutch of urgent SIs have been scheduled by the government for approval by both Houses of Parliament before prorogation takes effect.

Since 4 September, 24 Brexit SIs have been laid before Parliament. Of these 24 SIs, none has been laid as a proposed negative SI subject to the sifting process under the EU (Withdrawal) Act 2018. One of the SIs has been laid subject to the ‘draft affirmative’ procedure, and 11 have been laid subject to the ‘made negative’ scrutiny procedure. But the rest – 12 Brexit SIs – have been laid using the urgent ‘made affirmative’ scrutiny procedure. These 12 Brexit SIs have been laid by six different government departments and agencies:

  • HM Treasury – 4;

  • Department for Transport – 2;

  • Department for Business, Energy and Industrial Strategy – 2;

  • DEFRA – 2;

  • HM Revenue and Customs – 1;

  • Food Standards Agency – 1.

In the Supreme Court case, the government indicated that at the time it had used the ‘made affirmative’ urgent procedure on 11 occasions since the start of September. The government’s legal team indicated that ministers planned to lay a further 35 Brexit SIs under this same procedure in October. As we have now had 12 SIs laid using the procedure since the start of September, a further 34 such SIs may be laid over the next three weeks. If this were realised, it would mean 46 ‘urgent’ SIs being laid in less than two months to prepare for a possible no-deal exit at the end of October.

Prior to September, the urgent procedure had been used to lay Brexit SIs on 22 occasions, between 22 January and 19 July. The latest developments thus represent quite an increase in the volume and regularity of the use of this procedure – one that, it should be remembered, ministers said they anticipated using very rarely.

As a consequence of the peak in ‘urgent’ SIs laid plus the impending prorogation, Monday 7 and Tuesday 8 October will see parliamentarians blitz their way through the scrutiny of a clutch of ‘no-deal’ SIs that were laid in the week that Parliament returned after the summer recess and before the abortive prorogation.

On Monday 7 October, MPs will be asked to approve 11, nine of which are ‘urgent’ SIs under the European Union (Withdrawal) Act 2018 to deliver Brexit-related legislative changes. Of these nine, all are having their debate (in a delegated legislation committee) on the same day, immediately before MPs must vote. (One of the non-Brexit SIs due for approval on 7 October, on Northern Ireland governance, is also being debated immediately before the votes, but in the Chamber.)

At the other end of the Palace, the House of Lords will consider seven of these same Brexit SIs for approval, plus a further three that have not yet been scheduled for approval in the Commons. Of these 10 Brexit SIs to be approved by Peers, nine of them have been laid using the urgent ‘made affirmative’ procedure.

One of the SIs set to be approved by both Houses on 7 October is the Trade in Animals and Animal Products (Legislative Functions) and Veterinary Surgeons (Amendment) (EU Exit) Regulations 2019. It replaces an SI originally laid before Parliament on 26 June and subject to the draft affirmative procedure. As such, it would have had to be approved by both Houses of Parliament before it could be ‘made’ by the minister and become law.

However, this 26 June draft affirmative SI was withdrawn on 5 September (before either House debated or approved it) and replaced with a new SI, with the same name, but laid using the urgent procedure as a ‘made affirmative’. As such, it became law immediately on being made by the minister and will remain law until 17 October, by which time both Houses must approve it.

DEFRA explained the rationale for this switch from the ‘draft affirmative’ to the ‘made affirmative’ procedure to the Secondary Legislation Scrutiny Committee like this: “this approach ensures that the instruments will be on the statute book when the EU will vote in October on the UK’s request to be approved as a third country for the purpose of trade in animals and animal products after exit.” Similar provisions made earlier in the year were rendered obsolete following the extension of the Article 50 period and the delay to exit day. Labour’s shadow spokesperson for the environment, Baroness Jones of Whitchurch, has laid a ‘regret motion’ to be debated in the House of Lords along with the approval motion, outlining her concern that the government is using the urgent procedure to make an SI for a ‘no-deal’ scenario despite the fact that the House of Commons has passed the Benn Act (the European Union (Withdrawal) (No.2) Act 2019 requiring the Prime Minister to seek an extension of the UK’s membership of the EU if neither a Withdrawal Agreement nor a ‘no-deal’ exit has been approved by 19 October).

One of the ‘made affirmative’ SIs due to be approved on 7 October by both Houses – the Product Safety, Metrology and Mutual Recognition Agreement (Amendment) (EU Exit) Regulations 2019 – has been found by the Joint Committee on Statutory Instruments (JCSI) to be defectively drafted. The government itself has acknowledged this defect but, believing that the commencement provisions will still work, and that the mistake “will not have any practical or legal consequences”, is pressing ahead. However, as the JCSI noted, the mistake is likely to confuse users of the legislation.

Two of the SIs due to be approved in the Lords on 7 October – one subject to the ‘draft affirmative’ scrutiny procedure and the other the ‘made affirmative’ procedure – concern how the government proposes to manage traffic in Kent in the event of a ‘no-deal’ exit from the EU. In its latest report, published just four days before the SIs are due to be approved, the Secondary Legislation Scrutiny Committee has drawn the draft Heavy Commercial Vehicles in Kent (No. 1) Order 2019 and the Heavy Commercial Vehicles in Kent (No. 2) Order 2019 to the special attention of the House of Lords on the grounds “that they give rise to issues of public policy likely to be of interest to the House.”

Meanwhile, on the committee corridor, three Delegated Legislation Committees will also be held on Monday 7 October in the House of Commons to consider affirmative SIs not scheduled for approval by the whole House the same day. Of the three SIs to be debated, two are to prepare the statute book for Brexit day. One of these two Brexit SIs, the Human Medicines and Medical Devices (Amendment etc.) (EU Exit) Regulations 2019, has been laid by the government to correct deficiencies and omissions in two earlier SIs.

Correcting mistakes – whether in the text of the SI itself or in the accompanying Explanatory Memorandum (EM) – has been an ever-present problem in the production of Brexit SIs, as it is with SIs generally. The Secondary Legislation Scrutiny Committee notes that 7% of all SIs in the 2017-19 session required corrections and 7.6% of all EMs had to be replaced. However, these figures may themselves have to be revised, because the SLSC’s 60th Report of the 2017-19 session was a thematic report on the Work of the Committee in Session 2017-19 published on 10 September, the day after what proved to be an unlawful prorogation. The session still had more life in it and will not formally come to an end until 8 October. Although prorogation may have been “expunged” from the record, a number of actions cannot simply be undone – and the number of select committees in both Houses that rushed to publish their reports in time for prorogation, when otherwise they might have taken more time, is one of them.

Fox, R. (2019) Scrutiny of Statutory Instruments in the spotlight following Supreme Court judgement (Hansard Society: London)