Adam Tucker

(For clarity, I think legislation made under s23 to circumvent the Benn Act would in any event be ultra vires. But here I'm looking at political safeguards in Parliament which should really kick in before litigation on that issue arose)

s23 is a Henry VIII provision It empowers the government to amend primary legislation made up until the end of the current session of Parliament (So the prorogation would have headed this whole possibility off to start with. Voiding ab initio in Miller/Cherry has reopened it)

The procedural rules applicable to Ministers legislating under s23 are in Schedule 7 Para 15 sets up a mixed/hybrid scrutiny mechanism for s23 measures: they are subject to annulment (by either House) unless approved (by both) So ministers get to choose which path to use

That choice is constrained by para 17, which sets up the sifting mechanism. Committees in each House sift measures where the Minister has chosen to risk annulment rather than seek approval ("negative procedures") and make recommendations as to the appropriateness of that choice

Crucially, those recommendations are not binding. Until now, they have been routinely followed. But there is no reason to think that the current gvt would follow any recommendation about a measure to circumvent the Benn Act. (I think they should have been made binding)

Still, they are't totally toothless. Even if its outcome gets disregarded, the process slows things down: an instrument cannot be made until both committee recommendations have been made or ten sitting days have elapsed (whichever is the sooner)

So if either House objects to the use of the negative procedures under s23, the sifting mechanism can introduce a delay of ten sitting days to the process.

After that, the Minister can proceed to make the Instrument under negative procedures. (subject only to a requirement that he make statement explaining that choice or (and I am not making this up) failing that a statement explaining the failure to explain.)

So as sifting is not binding, it cannot be used to veto a proposed instrument under s23. But it could have the effect of delaying such an instrument. This is not a particularly strong safeguard. It should have been stronger. But when time is very tight, delays can matter.

So what about the Urgent Cases procedure in para 19? This allows the government to bypass the usual scrutiny mechanisms when certain conditions are met. I find it difficult to tell whether those conditions could be met here, so from now on I am just thinking aloud....

This is why I find this difficult. Of the five issues listed in 19(1)(b), s23 measures are the odd one out. All the others concern measures which can *only* be made under affirmative procedures, so their meaning is straightforward.

But under s23 / para 15, the Minister always has the choice to avoid affirmative procedures. That choice is preserved by the sifting mechanism. So surely (?) it is never the case that a s23 measure would "otherwise not be made" other than through affirmative procedures.

I'm a bit hesitant to defend this reading of that provision though, because it seems like renders it otiose. I'd welcome views (perhaps from @JoePTomlinson and @alexandrasinc10) on whether s23 measures can ever qualify for Urgent treatment under para 19.

My reading, fwiw, is that they can't and that this is dealt with by para 19(8) and (9). They make the urgent cases procedure unavailable for s23 measures. Instead, they disapply the sifting mechanism. That is, under para 19, gvt could evade that 10 day delay.

Such an instrument would immediately become vulnerable to annulment by either House (subject to the procedural rules which condition control of that House, the timing etc of annulments and so on)

Suppose I am wrong (not unlikely). Or that the government games this by selecting affirmative procedures and then diverting into para 19 on the grounds of urgency.

In those circumstances, what would para 19 allow? It allows an instrument to be made immediately, valid only for 28 days unless subsequently affirmed by both Houses. That possibility of affirmation is irrelevant here: attempt to avoid the Benn Act would be over before 28 days

And here's the nasty bit: para 19 does not make any allowance for annulment of urgently made instruments. That is, there is no provision *in that para* for the Houses to override the government's decision. Authority to annul would need to found elsewhere (or legislated for)