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