Prorogation and the Supreme Court ruling: What does it mean for a Green Brexit?

In the high politics of Brexit, it is easy to lose track of the environment. In the last two months, the new Johnson government has lost six votes in the House of Commons, failed to obtain a new general election, lost its majority and the new Prime Minister has just had prorogation declared unlawful and void by the Supreme Court. With so much going on, much less attention has been paid to the protection of the environment or support for farmers and land managers.

Although the ‘long prorogation’ has been declared void and Parliament will likely sit shortly, it is still possible that the Johnson government will declare another, shorter prorogation in preparation for a Queen’s speech. Therefore, thinking about prorogation’s impact on environmental legislation is still important.

Prorogation and Green Brexit legislation

But such high politics upheavals are full of consequences for the more mundane aspects of government activity. Prorogation not only sent MPs home – it raised questions as to the future of key environmental pieces of legislation which were until recently making their way through Parliament: the Agriculture Bill, the Fisheries Bill, and the yet-to-be-published Environment Bill. Even as Parliament is recalled, if the government still moves forward with a Queen’s Speech, these bills will fall. Have all the efforts made since the June 2017 election, and the Theresa May’s decision to push for a ‘green Brexit’, all been for naught?

As DEFRA secretary, Michael Gove embarked on an impressive pre-legislative and legislative agenda. As ‘minister for consultations’, he sought input far and wide on how such Green Brexit should be realized in fisheries, farming and the environment.

These many projects were slowly (sometimes very slowly) making their way through the Commons. The Fisheries and Agriculture Bill had been introduced, albeit making little progress in 2019. The Environment (Governance and Principles) Bill had not formally started its legislative journey, with only the first half of the bill published in draft form.

While the environmental movement was growing wary of the lack of progress on key bills, prorogation is yet another source of delay, as was the Conservative leadership contest this summer.

If the Johnson government pushes for a shorter prorogation, the Fisheries and Agriculture Bill will fall once again, which means they will need to be reintroduced by the government before Parliament can further work on them. This government or the next is not bound at all by the existing bills.

As for the Environment Bill, prorogation would be less damaging – as it was at an earlier, pre-legislative stage and will thus not need to redo any legislative stage. But the continuing lack of a second half of the bill fuels concerns about how environmental governance gaps are going to be addressed after Brexit.

Prorogation, stakeholders and parliamentary and administrative capacity

Prorogation matters for people, not just bills. These bills – be they at legislative or pre-legislative stages – have been the focus of civil servants, MPs and a wide-range of stakeholders for years. In Westminster and Whitehall, prorogation means actors having to re-do their job, which raises issues of opportunity cost: what will civil servants and MPs not be able to do while they waste time re-introducing and re-debating these same bills?

Beyond Westminster, actors in civil society, business, and academia are frustrated. Responding to consultations and participating in parliamentary inquiries takes a lot of time – prorogation raises risk that much of this time has been wasted. For many stakeholders, responding to these consultations and parliamentary inquiries would have been in addition to their day job – acceptable in a crisis perhaps, but not sustainable in the medium term as the Brexit crisis morphs into longer-term political and constitutional turbulence.

For many indeed these consultations may have been the first they take part in – seeing the bills you tried influencing fall is hardly conducive to building engagement. While governments rely increasingly on stakeholder engagement to input into policy development, such prorogation with no attention to on-going bills undermines the goodwill of the many stakeholders who made tremendous efforts to accompany the UK government in its decision to ‘take back control’.

Prorogation: A boon for politics beyond Westminster?

However, a prorogued parliament does not mean the end of politics and policy making in the UK – far from it. Looking at environmental policy change on the other side of the Atlantic, Klyza and Sousa argued that there was much happening despite and beyond gridlock in Congress. One only needed to adopt a wider focus – look for policy change at different levels of governance, in the courts, or self-regulation etc. Adopting this broader focus – beyond prorogation – sheds light on key initiatives and pockets of policy activity in which the format and ambition of any potential ‘green Brexit’ is being shaped.

Taking a four nations approach to the UK, one example is the new Scottish Programme for Government and its strong commitments on climate change. On 18 September, the Northern Irish consultation on an Environment Strategy for Northern Ireland opened (until 23 December), aiming to develop an equivalent to England’s 25 Year Environment Plan published last year.

Other examples of policy activity can be found in the on-going party conference season in the UK, where we can expect responses to the climate strike movement, and on the EU side, with the appointment of a new Commission and the proposed Vice President for a Green Deal.

In that respect, the voiding of the long prorogation may have negated a serious silver lining for cross-UK governance. Despite pledges of ‘genuine co-design’ by Defra and the UK government more generally, Bills have often appeared rushed, paying lip service, at best, to working with the rest of the UK.

This rush is particularly problematic when one considers that the bills, once introduced, have faltered and progressed only very slowly. Such rush has meant discussions on the future of environmental governance in Scotland, Wales and Northern Ireland are months behind those in Westminster – hence the discussions in Scotland were delayed by the Supreme Court battle over the Scottish Continuity Bill.

Halting work in Westminster, having bills fall and need to be reintroduced thus offers the possibility, first, for the rest of the UK administrations to catch up, and second, for a new attempt at ‘genuine co-design’ ahead of re-introducing the bills. Whether stakeholders are still engaged enough to seize these opportunities remain to be seen.

About the author

Dr Viviane Gravey is a Lecturer in European Politics at Queen’s University Belfast and Co-chair of the Brexit & Environment network.