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End-of-session SI debate spree highlights shortcomings of scrutiny process as a check on ministerial powers

27 Apr 2021
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Saturday sitting in the House of Commons to debate the renegotiated Brexit deal (19 October 2019). © UK Parliament/Jessica Taylor/Stephen Pike (CC BY-NC 2.0)

MPs are debating motions on ‘made negative’ Statutory Instruments (SIs) on three successive days this week. While the debates will give a last-minute boost to the government’s record for the handling of such SIs in the 2019-21 session, they also highlight how the government’s control of time undermines MPs’ role in scrutinising such Instruments.

Dr Ruth Fox, Director , Hansard Society
Dr Brigid Fowler, Senior Researcher, Hansard Society
,
Director , Hansard Society

Dr Ruth Fox

Dr Ruth Fox
Director , Hansard Society

Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.

In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.

In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.

,
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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Over 800 ‘made negative’ Statutory Instruments (SIs) have been laid before Parliament in the 2019-21 session, of which just eight will have been debated by MPs when the session ends on 29 April. Demand to debate such SIs is relatively low: motions to do so have been tabled to date in relation to just 13 Instruments. Yet, despite this, and with the end of the session just days away, five of these 13 Instruments have not yet been considered.

Moreover, of the eight ‘made negative’ SIs that have been debated, in the case of five of them time has been found for their debate only after the expiry of the statutory 40-day scrutiny period prescribed in the Statutory Instruments Act 1946. These five include all three being debated this week. The government’s command of time in the House under Standing Order No. 14 enables Ministers to frustrate the intention of the 1946 Act by neglecting to schedule time for consideration of these SIs, thereby undermining the principle of parliamentary accountability.

In this final week of the 2019-21 parliamentary session, the House of Commons is debating three ‘made negative’ SIs against which Keir Starmer MP, Leader of the Opposition, had tabled annulment motions. Two of the three SIs are being debated in the Chamber, on 26 and 28 April; and one, on 27 April, in a Delegated Legislation Committee (DLC) of the kind normally used to consider Instruments subject to the affirmative scrutiny procedure.

‘Made negative’ SIs are laid before Parliament after they have been made – signed – into law by the Minister. As ‘negative’ SIs, they do not require parliamentary debate or approval; but, under Section 5 of the Statutory Instruments Act 1946, they may be annulled if a motion to do so – known as a ‘prayer’ – is passed by either House within 40 days of the date of laying. (Periods of adjournment of over four days, or of prorogation or dissolution, do not count.) An MP wishing to secure a debate on a ‘made negative’ SI must table an Early Day Motion (EDM) in the form of a ‘prayer’ to annul the Instrument within the 40-day ‘praying period’. Unless an opposition party uses an Opposition Day debate to debate an SI in the Chamber, whether and when a ‘made negative’ SI is debated – in the Chamber or in a DLC – is in the gift of the government, owing to its control of parliamentary time.

The DLC debate on 27 April was the first DLC debate on a ‘made negative’ SI in the 2019-21 parliamentary session, while the debates on 26 and 28 April will increase by 40% the number of ‘made negative’ SIs debated in the Chamber in the session, taking the tally from five to seven.

This week’s debates will significantly improve the government’s record for granting debates on ‘made negative’ SIs in the 2019-21 parliamentary session.

After just over 200 House of Commons sitting days, in what will be the 11th-longest parliamentary session since 1945 when it concludes on 29 April, a cynic might suggest that the government is using these SIs as time-fillers as the session grinds to an end, and/or that Ministers are keen at the last minute to make their record on the holding of debates on negative SIs in the 2019-21 session marginally more respectable.

Tellingly, each of these three end-of-session debates on ‘made negative’ SIs will be ‘out-of-time’: as is shown in the table below, each is taking place after the expiry of the 40-day scrutiny period for the SI concerned. Under the 1946 Statutory Instruments Act, if either House resolves within the 40 days that a ‘made negative’ SI should be annulled, the SI will cease to be law, as the government is statutorily bound to revoke it by Order in Council. After the 40-day period is up, a ‘made negative’ SI can still be debated, but the motion to reject it must take the form of a motion that it should be ‘revoked’ rather than ‘annulled’.

Since the 1946 Act was passed, MPs have only rejected six ‘made negative’ SIs: four in 1951, one in 1953 and the last in 1979. On each of these occasions, the rejection occurred on a motion to annul the Instrument within the prescribed 40-day ‘praying period’.

What would happen in the (politically unlikely) event of an SI being rejected this week, after the expiry of the 40-day period, is thus untested. Ministers might argue that, legally, they are under no obligation to bring forward an Order in Council to revoke the regulations because they are beyond the 40-day scrutiny period. Politically, such a legalistic position would be difficult to maintain. Nevertheless, there is at least some ambiguity about the effect of an out-of-time resolution to revoke an SI.

Notwithstanding the improvement brought about by this week’s debates, the government’s record on the treatment of ‘made negative’ SIs in the 2019-21 session will remain poor. Overall, this week’s proceedings will reinforce rather than overturn worrying longer-term trends. Persistently, when the question arises of reform of the delegated legislation system, Ministers argue that current procedures provide sufficient safeguards. Their actions in relation to ‘made negative’ SIs illustrate, once again, that this is not true.

While this week’s proceedings will take the number of ‘made negative’ SIs debated in the Chamber in the 2019-21 session to seven and the total number debated to eight, 13 such SIs have had ‘prayer’ motions tabled against them, generating 15 such motions in total (some SIs had more than one motion tabled against them). This leaves five ‘made negative’ SIs during the session that some MPs wished to debate but could not.

Successive governments in recent years have claimed that, in particular, they always grant time to debate motions to annul negative SIs if they are tabled by the Leader of the Opposition. However, the data for the 2019-21 session show that, once again, this claim does not hold up. In total, Labour leader Keir Starmer MP has tabled eleven ‘prayer’ motions to annul ‘made negative’ SIs during the 2019-21 session. Of the eleven SIs concerned, six will have been debated in the Chamber in the session (including this week’s proceedings), plus one in the DLC on 27 April. This leaves four ‘made negative’ SIs which the Leader of the Opposition wished to debate but for which time has not been found.

The out-of-time nature of this week’s debates is also more common than not: of the eight ‘made negative’ SIs debated during the 2019-21 session in total (seven in the Chamber and one in a DLC), five were debated after the expiry of their 40-day scrutiny period.

There are two key reasons to be concerned about the situation raised by this week’s proceedings on ‘made negative’ SIs.

First, the 40-day scrutiny period is the official route – set out in statute – for MPs to hold ministers to account for whatever actions they may take in the exercise of those powers delegated to them that are subject to the ‘made negative’ scrutiny procedure. SIs subject to this procedure are the dominant form of delegated legislation: about three-quarters of all SIs laid before Parliament are subject to the ‘made negative’ scrutiny procedure. The small number of debates on such SIs in the 2019-21 and previous sessions, coupled with the holding of these debates ‘out-of-time’, demonstrates the inadequacy of this scrutiny procedure as a check on ministerial powers.

Second, this week’s debates highlight the way in which the government, like successive governments over the last decade, is using parliamentary procedure to frustrate the intention of the 1946 Act and thereby undermine the principle of parliamentary accountability. Specifically, the problem lies in the government’s control of time in the House of Commons under Standing Order No. 14.

House of Commons Standing Orders and the provisions of the 1946 Statutory Instruments Act stand in inherent tension.

In the form of EDMs, prayer motions to annul ‘made negative’ SIs are motions for which no fixed parliamentary debating time is allocated. Whether an MP’s objection to such an SI is ever debated lies almost entirely in the hands of the government, not the House. Standing Order No. 14(1) states that “Save as provided in this order, government business shall have precedence at every sitting.” The government is therefore entitled under Standing Orders not to grant time for consideration of a prayer motion within the 40-day scrutiny period, or indeed at all.

However, in passing the 1946 Statutory Instruments Act, Parliament clearly intended that either House would have an opportunity to require the annulment of regulations subject to the ‘made negative’ scrutiny procedure. It was surely never the intention of Parliament that the opportunity for MPs to exercise this power would be dependent on the whim of a Minister or government business managers.

Indeed, Ministers are arguably acting unreasonably in the exercise of their discretion by failing to seek the view of the House of Commons within the 40-day statutory period provided for in the 1946 Act, when asked to do so by the tabling of a ‘prayer’ motion in the form required by the Act. Standing Order No. 14 is permissive, not mandating: it does not require the government always to give its own business precedence. There is nothing in the Standing Order which would prevent government business managers from respecting the spirit of the 1946 Act by scheduling debates on negative SIs in a timely manner. It is ministerial choice not to do so.

The research for this paper was supported by the Legal Education Foundation as part of the Hansard Society’s Review of Delegated Legislation

Fowler, B. & Fox, R., End-of-session SI debate spree highlights shortcomings of scrutiny process as a check on ministerial powers, (London: Hansard Society), 27 April 2021