With parliament having again ceased activity, all eyes should be on the important raft of secondary legislation still in the pipelineby Alexandra Sinclair and Joe Tomlinson / October 11, 2019 / Leave a comment
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…