08 February 2019

As the Article 50 clock runs down, Maddy Thimont Jack argues that legislative deadlines are more elastic than they look.

Parliament has a key role in preparing for a no deal Brexit. The Government needs to pass new legislation – both primary and secondary – to establish new policy regimes in key policy areas such as agriculture and fisheries after the UK leaves the EU. There are still six pieces of primary legislation, nearly 500 more statutory instruments, as well as international treaties for Parliament to scrutinise.

All that with just 30 scheduled sitting days in Parliament remaining before 29 March (from 8 February).

Working back from that date, there are some key deadlines the Government will be aiming for. But if time gets really squeezed, it will have the option of resorting to ‘work-arounds’ – although many of these are far from ideal.

The Government is keeping Brexit away from the floor of the House

The Government has consistently delayed votes on the main Brexit bills whenever it has been concerned about losing votes on key amendments, but time is running out.

With a legislative mountain to climb, the Government chose not to schedule the usual February recess this year. But despite MPs being told that they couldn’t have their holidays because of Brexit, the House of Commons adjourned at 3:30pm on 6 February, no Brexit debates took place this week and only the second reading of the Financial Services Bill is scheduled ahead of the vote on the Prime Minister’s next steps next Thursday.

The lack of time in the Commons allocated for scrutiny of Brexit bills would be understandable if the relevant bills were off the floor and in committee or the Lords. The Trade Bill – which is definitely needed to pass into law – is stuck in the Lords, but the Agriculture and Fisheries Bills, both of which No.10 say are required for no deal, are awaiting a return to the floor of the House.

To ensure there is no legal hiatus in the event of no deal, primary legislation can be pushed through in a day if necessary. But this requires a working majority willing to cooperate with the Government. It therefore needs to make clear now what powers are really essential for day one of a no deal outcome.

Despite the lack of progress on the Brexit bills, Parliament is not sitting idle

While there is an eerie silence in the main chamber, Parliament is still grinding away on Brexit. In the committee corridors, work is being done to deal with other gaps which need to be addressed by exit day. For example, delegated legislation committees in the Commons have been meeting to pass Brexit statutory instruments (secondary legislation) – 13 were held this week.

In the Lords, peers have also been approving statutory instruments, and the EU Select Committee has begun to scrutinise around 20 international treaties that the Government has already signed. Ministers have said around 80 are needed by exit day and some – although not all – will need to be laid before Parliament under the Constitutional Reform and Governance Act (CRAG) 21 sitting days ahead of ratification.

So cancelling the recess was less about finding more time on the floor of the Commons, but rather to deal with the backlog of work making its way through committee corridor.

Normal legislative deadlines for a 29 March exit are approaching

Despite the extra days, the scale of the task still remains huge. Although around 400 statutory instruments have been tabled, only 119 have actually passed, so nearly 500 still need to enter into law. Roughly half of the total need to go through delegated legislation committees (under affirmative procedure), requiring ministerial time and willing MPs.

The other half of the statutory instruments have been tabled under the negative procedure, used in non-controversial cases. MPs and peers have 40 days to vote to ‘annul’ them, and the Government by convention usually leaves at least 21 before bringing them into force to allow parliamentary scrutiny. If the UK wants these statutory instruments to be in place for 29 March, the latest sitting day they can be laid is need to be laid is 7 March..

But the Government has equipped itself with powers to get around those deadlines

Under the EU Withdrawal Act, in “urgent deficiencies cases” ministers can pass affirmative statutory instruments immediately. Both Houses would have 28 calendar days to approve an instrument passed in this way after they have entered into law (assuming Parliament sits as usual) otherwise it would cease to apply.

This could prove risky with a hostile Parliament: if they were voted down, it could lead to a legal gap further down the line. The Government could also choose to set aside the 40-day waiting period for negative statutory instruments if it felt that time was of the essence, but this would also likely annoy MPs already frustrated by how late in the day Brexit legislation is being passed.

Treaties, meanwhile, will need to be laid by 20 February to give Parliament its 21-day period. CRAG allows the Government to avoid the 21 sitting days in “exceptional cases”, but ministers have so far told select committees they will not use that power. A U-turn will further undermine the already strained trust between the Government and Parliament.

While time is running out between now and 29 March, there are ways that the Government can navigate a way through the immediate deadlines that it faces. The cost, however, could be an erosion of any remaining goodwill in Parliament.