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Why MPs need our proposals to reform the delegated legislation system: Two cases in point

17 Mar 2023
Westminster leader of the SNP Stephen Flynn making a speech in the House of Commons. ©UK Parliament/Jessica Taylor
Westminster leader of the SNP Stephen Flynn making a speech in the House of Commons. ©UK Parliament/Jessica Taylor

The cases of two recent Statutory Instruments that went undebated in the House of Commons – on controls on trade between Great Britain and Northern Ireland, and the Scottish Gender Recognition Reform Bill – show why MPs need our proposals for a more responsive and effective SI scrutiny system.

Dr Brigid Fowler, Senior Researcher, Hansard Society
,
Senior Researcher, Hansard Society

Dr Brigid Fowler

Dr Brigid Fowler
Senior Researcher, Hansard Society

Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.

After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.

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A number of MPs recently wished to debate and potentially overturn two Statutory Instruments (SIs) which enacted critical Government decisions in controversial and high-profile policy areas. However, the current SI scrutiny system in the House of Commons almost guaranteed that they were unable to do so. The two SIs in question (detailed in the side boxes below) related to:

  • controls on trade between Great Britain and Northern Ireland; and

  • the blocking of Scottish legislation on gender recognition.

Neither SI had been debated by the elected House when the statutory periods for Parliament to overturn them expired in early March.

The two cases show why a reformed SI scrutiny system at Westminster is needed so that MPs are able to scrutinise and debate the SIs that concern them.

A Working Paper from the Hansard Society’s Delegated Legislation Review has recently made proposals for such a system.

Both of the SIs in question were subject to the ‘negative’ scrutiny procedure – that is, they do not require active parliamentary approval and so by default are not debated.

To seek a debate on such SIs, MPs must use a process which is terminologically obscure and politically ineffective. They must table or sign an Early Day Motion (EDM) calling for the SI to be annulled, revoked or not made. The most common form are known as ‘prayer motions’, because they propose that ‘an humble Address be presented to His Majesty, praying that [the SI] be annulled’.

EDMs have no guaranteed parliamentary time allocated for their consideration. When an EDM has been tabled against an SI, it is the Government that determines whether, where (in Committee or the Chamber) and on what terms the Instrument is debated. This is because the Government controls business in the elected House (under Standing Order No. 14). But even when the Government does allocate a ‘negative’ SI for a debate, these rarely offer MPs an effective vehicle to pursue specific concerns. The two possible forms are:

  • a debate by a Delegated Legislation Committee (DLC) – comprising a temporary membership, in effect appointed by the Whips – on a non-substantive ‘consideration’ motion (which obliges MPs who wish to vote against the SI to deny that they have considered it); or

  • an ‘up or down’ Chamber debate and decision on the ‘prayer’ or other motion for outright rejection.

In this current system it is fairly normal for there to be no debate in the elected House on SIs which have had ‘prayer’ or other EDMs tabled against them (as shown by the data in the table below). This applies almost regardless of the number and range of MPs who sign such motions:

The number of MPs who signed the second of these EDMs was relatively high: among the 28 EDMs against ‘negative’ SIs tabled in the 2019 Parliament to mid-March 2023, the number of signatories ranged from one to 138, with an average of 25.

However, debates on ‘negative’ SIs in the House of Commons are vanishingly rare when the MPs signing the relevant EDMs do not include the Leader of the Opposition, as in these two cases. From the start of the 2019 Parliament to March 2023, only one such SI was debated.

Number of debates on ‘negative’ Statutory Instruments which had Early Day Motions tabled against them, House of Commons, December 2019-March 2023

No. of SIs to have EDMs tabled against themNo. of these SIs which were debated
2019-21 Session138
2021-22 Session72
2022-23 Session (to 16 March 2023)81
Source: Hansard Society Statutory Instrument Tracker® data

In the House of Lords, by contrast, debates on ‘negative’ SIs are relatively common. This is because the Government does not have the same control of business there as in the Commons. Lord Dodds’ ‘prayer motion’ against the Official Controls (Northern Ireland) Regulations 2023 was debated in the Lords for almost two hours.

It might be argued that the ineffectiveness of the EDM system does not matter because MPs have other procedural vehicles available to them to raise concerns related to ‘negative’ SIs. For example, the Government decision which was enacted by the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 was subject to an emergency debate almost immediately after its announcement (under Standing Order No. 24). Similarly, the MP most concerned by another recent ‘negative’ SI, which establishes the Middlesbrough Development Corporation, has not seen his ‘prayer motion’ debated but he secured a Westminster Hall debate on the issue on 14 March.

However, whether MPs succeed in using such vehicles can depend on contingent factors that do not reflect a consistent or systematic practice with respect to SIs. The bar for success is often high (the emergency debate on the Scottish Gender Recognition Bill issue was the first in the 2022-23 parliamentary Session). And such vehicles anyway do not offer an opportunity for formal scrutiny of the legal text of the SIs themselves, as opposed to the associated policy issues.

The current system in effect excludes MPs from being able, as a matter of routine, to scrutinise a large body of the law that applies in the UK. This:

Defenders of the current SI system often point out that, when it decided to pass the relevant parent Acts, Parliament granted Ministers the powers that they are using when they make delegated legislation. But, when it passed the Statutory Instruments Act 1946, Parliament equally decided that it should be able to cause ‘negative’ SIs to be overturned.

The problems outlined in this post arise fundamentally because:

  • parliamentary scrutiny procedures for SIs are determined in the relevant parent Acts, which are often passed in an earlier Parliament and sometimes many years previously, leaving current parliamentarians with no flexibility about the scrutiny process for an individual SI; and

  • existing scrutiny procedures for SIs are ineffective.

Our proposed reforms would address both issues by:

  • Removing the specification of scrutiny procedures in parent Acts and allowing current parliamentarians to determine the type of scrutiny to which an SI is subject, when it is laid before them.

  • Establishing more effective vehicles for MPs to scrutinise and debate the SIs of concern to them, through dedicated permanent scrutiny committees and amendable motions.

In our reformed system, parliamentarians would determine the type of scrutiny to which each Statutory Instrument is subject by ‘sifting’ SIs into one of two categories:

  • SIs which require no further scrutiny (‘Group A’); and

  • SIs which merit further scrutiny and active approval (‘Group B’).

This would be carried out by a parliamentary sifting committee. We propose that this should be a joint committee, building on the existing Joint Committee on Statutory Instruments (JCSI) and House of Lords Secondary Legislation Scrutiny Committee (SLSC), and supported by a specialist staff.

The point of our proposed sifting process would be to empower parliamentarians to decide whether SIs like the Official Controls (Northern Ireland) Regulations 2023 merited further scrutiny and an active parliamentary decision. Given the evident political interest they aroused, the two SIs highlighted in this post are prime candidates where this process might make a difference.

In the House of Commons, SIs which the sifting committee decided merited further scrutiny and approval would be sent to new permanent dedicated Regulatory Scrutiny Committees, organised around clusters of Government Departments.

These Committees would be able to hold debates and/or evidence-style sessions with Ministers on the SIs concerned – so tailoring their scrutiny to the nature of the SIs, holding Ministers to account, and better enabling MPs and the public to have access to relevant information and documentation.

The new Committees in our system might also receive policy-related representations on SIs from external stakeholders: at present, the elected House has no body that might have considered the over 40 pages of submissions on the Official Controls (Northern Ireland) Regulations 2023 that were received by the SLSC in the Lords.

We also propose that, when debates on SIs are held in the Commons (in either the new Committees or the Chamber), they should be held on substantive amendable motions. This would give MPs a more rewarding way of engaging with SIs that better enables them to use and reflect the experiences and concerns of their constituents.

We recognise the need for Government sometimes to be able to make and bring SIs into force quickly, when urgency is warranted, as in the case of the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order (see timeline). Our proposed reformed system would still include provision for urgent cases such as this.

Our reformed system would establish a Parliament-led process whereby SIs that truly merit further scrutiny could be identified and channelled into an effective pathway that could deliver it, without blocking the Government’s need to move at speed when needed.

Fowler, B. (17 March 2023), Why MPs need our proposals to reform the delegated legislation system: Two cases in point (Hansard Society blog)

Who funds this work?

This work is supported by the Legal Education Foundation as part of the Hansard Society's Delegated Legislation Review.

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