Alexandra Sinclair and Joe Tomlinson: Making Parliamentary Accountability Effective: Prorogation, No Deal Brexit, and Statutory Instruments (Part 3)

Unless you have been living in a nuclear bunker, you will know that the UK Supreme Court held in R (on the Application of Miller) v The Prime Minister that the decision to prorogue Parliament was unlawful. This was because the prorogation had the effect of ‘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’ (para. 50). The consequence of this ruling, in simple terms, is that ‘Parliament has not been prorogued’ (para. 70). In this post, we follow up on our previous analysis of the impact of prorogation on the Brexit legislative programme (available here and here, which was also before the UKSC as the basis of an intervention) by examining the impact of the Court’s ruling.

As regards primary legislation, none of the Bills in the last parliamentary session have fallen as the last parliamentary session never ended. Most relevantly, the five Brexit Bills that were progressing before Parliament—the Trade Bill, the Financial Services Bill, the Agriculture Bill, the Fisheries Bill, and the Immigration and Social Security Coordination Bill—remain live and at the stage they were at prior to the attempted prorogation. It remains to be seen whether the Government will now seek to progress these Bills—once deemed critical to an orderly Brexit, the Supreme Court were told they were unnecessary.

As for statutory instruments, the situation is a little more complex. 11 Brexit SIs have been laid under the urgent case procedure under the European Union (Withdrawal) Act 2018 (EUWA) since 5th September 2019. Under the urgent case procedure (see Schedule 7, EUWA), these SIs must be debated within 28 days or will cease to have effect. The Act states that those 28 days do not include days when Parliament is prorogued. Because Parliament was not lawfully prorogued it appears that the clock has continued to run on those urgent case procedure SIs laid on the 5th and 9th September 2019. However, the Speaker’s ruling on 25 September was that Parliament was adjourned from 9th September 2019 until 25th September 2019. EUWA states that in calculating the 28-day period no account is to be taken of any time during which either House of Parliament adjourned for more than four days. Therefore, the eight urgent SIs laid on 5th September 2019 must be debated and approved by each House by 17th October 2019 or they will cease to have effect. Without deemed adjournment, there would have been only a few days remaining to debate and approve them all.

In addition to the 22 Brexit SIs laid since 4th September, there were another 42 outstanding EU Exit SIs that had been laid in 2019 and had not yet completed the Parliamentary scrutiny process. For those affirmative or upgraded instruments that were awaiting debate or approval motions in the Commons or the Lords, the Supreme Court decision has not changed the position and these SIs still require debate and approval motions in order to become law. For the SIs subject to the negative resolution procedure, the 40-day period in which an SI can be prayed against will not include the period during which Parliament was deemed to be adjourned (see section 7, Statutory Instruments Act 1946).

The Government’s submissions in the Miller hearing stated that 35 further EU Exit SIs would be required under the urgent case procedure before exit day. It is not known whether the Government’s position has changed now Parliament will no longer be prorogued until 14th October 2019. In principle, fewer SIs should be required to be made under the urgent case procedure as there is more Parliamentary time available to debate draft affirmative SIs in each House. It is clear from the Miller decision that the Court considered that holding the Government to account via Parliamentary business, including the Parliamentary scrutiny of delegated legislation, to be a constitutional fundamental (see para. 46) and it is implied that, if Parliament was not prorogued, this business would be undertaken. Yet, it could be the case that significant numbers of emergency SIs are still made so that they can be in force by exit day, if that is to be 31st October 2019. There are still over 25 draft affirmative SIs requiring debates or approval motions before exit day and Parliamentary time remains stretched.

As with all constitutional principles, the principle of Parliamentary accountability, as elaborated by the Supreme Court, falls to be tested by reference to its practical implementation. While the position regarding the SIs laid so far seems relatively straightforward, developments will need to be closely watched in the coming weeks to see how the remaining Sis which are currently being packed into the cannon—which are likely to touch on controversial policy issues—are managed.

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, ‘Making Parliamentary Accountability Effective: Prorogation, No Deal Brexit, and Statutory Instruments (Part 3)’, U.K. Const. L. Blog (1st Oct. 2019) (available at