Constitutional Law Group European Union, UK government, UK Parliament

Alexandra Sinclair and Joe Tomlinson: Eliminating Effective Scrutiny: Prorogation, No Deal Brexit, and Statutory Instruments (Part 2)

Last week, we posted an analysis of the position vis-à-vis Brexit legislation, both primary and delegated, in view of the Government’s prorogation decision. In that post, we set out a range of likely consequences, which are now beginning to come to fruition. As regards primary legislation, only three carry over motions were passed for eligible bills at the end of the session. The result is that a range of bills, including but not limited to all five Brexit Bills, have fallen. Our primary focus, however, was, and remains, statutory instruments (SIs). In this post, we demonstrate how the consequences of prorogation are playing out in this sphere. We make four observations based on SIs passed in recent days but our headline point is a simple one: this is an exercise in legal and governmental reform going without effective scrutiny.

Our first observation is that SIs are now, as we expected, being laid as made. Some examples from recent days include:

  • Capital Requirements (Amendment) (EU Exit) Regulations 2019;
  • Risk Transformation and Solvency 2 (Amendment) (EU Exit) Regulations 2019;
  • Animal Health and Genetically Modified Organisms (Amendment) (EU Exit) Regulations 2019;
  • Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019;
  • Customs Safety and Security Procedures (EU Exit) (No. 2) Regulations 2019;
  • Financial Services (Electronic Money, Payment Services and Miscellaneous Amendments) (EU Exit) Regulations 2019; and
  • Product Safety, Metrology and Mutual Recognition Agreement (Amendment) (EU Exit) Regulations 2019.

This was clearly not the planned course in respect of these SIs, or at least many of them. This is clear from how, for example, The Trade in Animals and Animal Products (Legislative Functions) and Veterinary Surgeons (Amendment) (EU Exit) Regulations 2019 were initially laid as a draft affirmative SI on 26 June 2019 and then, on 5 September 2019, withdrawn and relaid as a made SI.

Our second and related observation is that, to achieve expedition, the Government is now using the urgent procedure provided under Para. 5(2) of Schedule 7 to the European Union Withdrawal Act 2018. This urgent procedure allows the Government to make an SI ‘without a draft of the instrument being laid before, and approved by a resolution of, each House of Parliament if it contains a declaration that the Minister of the Crown concerned is of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved.’ The Explanatory Notes behind this provision do not explicitly foresee prorogation but suggest that ‘urgent cases’ could ‘include, for example, where a statutory instrument needs to come into force because of a lead-in time required to allow systems to be changed or put in place before exit or, where, due to the progress of negotiations, statutory instruments are made close to exit day.’ By contrast, the explanation given in respect of some SIs being made via the urgent procedure, explicitly do cite prorogation as the reason for use of the procedure. For instance, in the Explanatory Memorandum for the Specific Food Hygiene (Regulation (EC) No. 853/2004) (Amendment) (EU Exit) Regulations 2019, it is said that ‘[d]ue to the prorogation of Parliament, we are required to use the urgent, made affirmative procedure for this SI to ensure that is made by 11 October, which is when we understand the EU Commission will take a vote on whether the UK can be listed as a Third Country for exporting products of Animal Origin.’ In plain terms, it is clear that prorogation is forcing use of the emergency procedure.

Our third observation, which is obvious but easy to lose sight of in the face of dense SI titles, is these SIs are reforming law and government. An example of an SI from recent days is illustrative. The Capital Requirements (Amendment) (EU Exit) Regulations 2019 relate to two pieces of EU legislation: the Capital Requirements Regulation (EU Regulation No. 575/2013) and the Capital Requirements Directive IV (Directive 2013/36/EU). This is EU legislation that lays down various standards for the management of capital, liquidity, and credit risk, including provisions which require banks to set aside enough capital to cover their risks. It defines measures of risk in order to determine the level of capital a firm is required to hold and it also requires that banks hold a sufficient level of liquid assets for times of financial difficulty. Formulated primarily in the wake of the financial crisis, this is legislation to protect depositors, consumers, and other creditors of banks and other financial institutions. As the accompanying Explanatory Memorandum makes clear, without this SI then ‘significant aspects’ of the UK’s ‘regime would become less effective or legally inoperable… the UK’s ability to regulate the financial sector effectively would be compromised, affecting market confidence and creating instability.’ Amongst other things, the SI  transfers enforcement functions to HM Treasury, the Prudential Regulation Authority, and the Financial Conduct Authority. This is, to an extent, ‘gap-filling’ but it is still serious law-making and governmental change. While we are public lawyers and not banking lawyers, it does not require a banking lawyer (or even a lawyer for that matter) to comprehend the importance of these arrangements.

Our fourth and final observation is that the SIs being produced now equate to a large quantity of law. Take just those SIs, concerning Brexit, which were laid as made on Thursday 5th September. On that day alone, there were 15 Brexit SIs laid as made. In total, those SIs ran to 196 pages of law. This is a rudimentary and imperfect metric, but it gives a sense of the scale of law-making activity.

In view of the state of affairs elaborated here and the likely trajectory of developments (as set out in our previous blog), Sir Charles Walker MP, Chair of the House of Commons Procedure Committee, wrote to Jacob Rees-Mogg MP, Leader of the House of Commons. He asked if the Government planned to make further use of the urgency procedure and if so how many other SIs subject to that procedure would be brought into force prior to 31st October. The Chair further requested reassurance that the SIs that had already been laid would be debated in full prior to exit day as it would be unacceptable for them to be debated and approved by the House only after they were in force. On the current course, he is unlikely to get the answers he wants.

Alexandra Sinclair is a Research Fellow at the Public Law Project. She is leading on the SIFT Project, which, in partnership with the Hansard Society, is tracking trends in Brexit SIs.

Dr Joe Tomlinson is Senior Lecturer in Public Law at the University of York and Research Director at the Public Law Project.

(Suggested citation: A. Sinclair and J. Tomlinson, ‘Eliminating Effective Scrutiny: Prorogation, No Deal Brexit, and Statutory Instruments (Part 2)’, U.K. Const. L. Blog (17th Sept. 2019) (available at https://ukconstitutionallaw.org/))