The second prorogation: what are the implications for legislating for Brexit?

With parliament having again ceased activity, all eyes should be on the important raft of secondary legislation still in the pipeline

October 11, 2019
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The last time the prime minister attempted prorogation, there were five Brexit Bills on their way through parliament. These laws were intended to create new frameworks and powers in areas such as trade, financial services and agriculture. At the same time, many more statutory instruments were also passing through parliament—secondary legislation, often of a technical nature, to bring laws into force without a further Act of Parliament.

Together, these formed the central plank of a legislative programme necessary to ensure the UK statute book was ready for Brexit. The scale and complexity of this task is difficult to overstate. The current phase of the Brexit legislative programme is experiencing prorogation-related turbulence. But the basic problem is that there is a need to pass lots of complex laws in a parliamentary environment conditioned by a looming countdown clock and unstable politics.

The Supreme Court’s decision last month opened up something of a tear in the legislative time continuum. Prior to the judgment, everyone initially thought that the five Brexit Bills had disappeared and needed to be started from scratch. But the legal effect of that judgment was that parliament had never been prorogued. The legislation before parliament was preserved at the stage it was at. Despite being temporarily revived, however, the five Brexit Bills have not progressed. Indeed, they have been stuck for months. Given the political gridlock on Brexit, the government has seemed reluctant to advance the Bills despite initially holding them out as being of central importance.

Yet without these Bills, it means that more laws must be shoehorned into statutory instruments. A lack of primary legislation also means the government has to use existing powers to create delegated legislation rather than the extensive new powers it planned to receive through the Bills. Using existing powers to make these laws increases the risk the government will stretch them beyond their intended use.
“There are serious questions as to why the government left some of these instruments until so late in the day”
Brexit Secretary Stephen Barclay stated in June that 100 further Brexit-related statutory instruments were required before exit day. Prior to the announcement in August that the government intended to prorogue parliament, only around 27 further Brexit statutory instruments had been laid. Then, after the prorogation was announced but before parliament had actually closed,the government began using an urgent procedure to bring laws into force without passing them through parliament—instead, they required approval within 28 days of being made or they would cease to be law. Using this urgent procedure took these laws outside of the special parliamentary scrutiny procedures designed to check their contents, though the Supreme Court’s judgment opened up more time for parliament to approve those SIs.

Parliament has now been prorogued again. It is a more routine exercise of power the second time around. However, there will again be a negative impact on the legislative programme around Brexit. Aside from the obvious time lost, all the Brexit Bills have fallen as no motions were passed carrying them over to the next session. All the Bills will have to start again if they are deemed necessary at some future point.

As the Brexit Bills have fallen, all eyes should be on the important raft of delegated legislation still in the pipeline. Parliament speedily debated, in the two days leading up to prorogation, nine of the 11 statutory instruments laid in September under the EU (Withdrawal) Act urgency procedure. If they are not debated within 28 days of being laid (not including the two prorogation periods) they will cease to be law—a possibility which risks legal confusion.

The urgent procedure for making statutory instruments can also still be used during this new prorogation period this week and afterwards. Indeed, it is highly likely that it will be—the government told the Supreme Court last month that 35 more statutory instruments would be required under the urgency procedure by 31st October. Since then only four more have been laid in this manner. It is therefore likely we will see another wave of new laws brought into force without prior scrutiny from parliament. With only three weeks until exit day left when parliament returns next week, it seems inevitable that some of the urgent laws in force on 31st October 2019 will not have been debated. There are serious questions to be asked as to the reasons why the government has left some of these statutory instruments until so late in the day.

The need to pass rafts of law to make Brexit legally workable is unlikely to slow down anytime soon. In the long term, there are likely to be further calls for review of the processes through which parliament scrutinises delegated legislation. At the same time, it is also more likely the courts will be asked to intervene to define and control the exercise of new and broad governmental powers. This is only the first leg of a much longer journey.


Alexandra Sinclair and Joe Tomlinson