Published: 20th September 2019 Public Law Project (PLP) publishes this note as clarification and context to the Government’s response to our intervention in Miller v Prime Minister. On 19 September 2019, the final day of the hearing, Lord Keen QC responded directly to the PLP’S intervention, telling the Supreme Court that the statutory instruments (SIs) that are required in order to enable an ‘orderly’ exit from the EU could all be debated and scrutinised by the House of Commons before exit day. As he summed up for the Government, the Advocate General for Scotland also acknowledged that the witness statement made by PLP’s Research Director Dr Joe Tomlinson was correct in saying that the 5 Brexit Bills which were pending had all fallen when Parliament was prorogued. It had been wrongly suggested otherwise by Sir James Eadie QC. In a note to the Supreme Court, referred to by Lord Keen QC, the Government confirmed that it plans to lay a further 35 SIs in October 2019 which it considers are necessary for an orderly exit on 31 October. As PLP’s evidence explained, there were already 42 SIs laid before 4 September 2019 which had yet to finish their Parliamentary scrutiny at the time that Parliament was prorogued. A further 21 SIs were laid between 4 and 9 September, 11 of which were made using the urgency procedure. There are only 14 sitting days between the end of prorogation and exit day on 31 October. During that time, Government business alone includes five days of debate on the Queen’s Speech, the passage of the EU Withdrawal Act, consideration of the outcome of the EU Council meeting and at least some of the remaining five Brexit Bills. Other Parliamentary business and a potential General Election may account for further parliamentary time. Whilst we note the Government position that there is no reason these instruments cannot be debated before 31 October, we do not consider it realistic that effective scrutiny will be possible in the time available. Lord Keen QC also underscored that made affirmative SIs which are made under the urgency procedure do have to be debated. But as PLP has explained, the requirement is that they are debated (and approved) within 28 sitting days of being made otherwise they lapse. With the prorogation of Parliament, that 28-day period does not even start until Parliament returns on 14 October. In those circumstances, it is inevitable that some SIs will come into force on or before 31 October without having been debated. Public Law Project 20 September 2019