Our ‘Lifting the Lid’ blog series aims to open up the delegated legislation process by revealing the stories behind some recently published Statutory Instruments. This week: The Education (Student Support) (Amendment) Regulations 2015.
Monday’s regret motion debate in the House of Lords on the Education (Student Support) (Amendment) Regulations 2015 was the final act in this SI’s rather eventful journey through Parliament.
Introduced in December, these regulations seek to replace the current means-tested student maintenance grant available to lower income students with a new increased loan for living costs package for new full-time students starting their courses in the 2016/17 academic year.
The proposal, first announced in July’s Budget Statement, has been criticised by organisations such as the National Union of Students who claimed that the government was, “trying to sneak these proposals through without public consultation, scrutiny, and with no mention in their manifesto at the election”.
This instrument is subject to the negative procedure which means that it will become law on a stated date unless a ‘prayer’ motion is passed in either House within 40 days of the instrument being laid, annulling the instrument. A prayer motion was tabled by the Labour Party in early January.
In a previous blog post on the Prison and Young Offender Institution (Amendment) Rules 2015, I outlined the process by which MP’s table ‘prayer’ motions via Early Day Motion (EDM) and stated that whilst no fixed parliamentary time is allocated to EDMs, if the official opposition tables a prayer motion there is some chance that it will be debated.
In that particular case, the government did allocate time for debate but rather than debating the motion on the Floor of the House, the instrument was referred to a Delegated Legislation Committee. Labour’s prayer against the Education (Student Support) (Amendment) Regulations 2015 also secured time for debate, but again in committee rather than the Chamber.
In the 2014/15 session, nine negative instruments were prayed against in the House of Commons. Of those, only one, the Firefighters’ Pension Scheme (England) Regulations 2014, secured debate and that was moved on the Floor of the House.
Already in this session, 12 prayer motions have been tabled by MPs via EDM, nine by the official opposition alone. Four of the opposition’s motions have secured debate thus far, all of which have taken place in a Delegated Legislation Committee.
It is not yet clear as to why we have had so many referrals already in this session. It may well be that the new Labour Party leadership has taken a new approach to the scrutiny of statutory instruments than the one taken by its predecessor. Following the 1997 general election, part of the opposition’s parliamentary strategy was to table prayer motions as a matter of course. Three hundred were tabled in just one session, 279 of them in the name of the Leader of the Opposition, William Hague.
What we do know is that referring a prayer motion to a Delegated Legislation Committee means that the debate can only be held on a non-fatal consideration motion. Even if the consideration is negatived, the instrument can only be rejected if a further substantive vote annulling the SI is held (without debate) on the Floor of the House. This almost never happens because there is no requirement for a subsequent motion to be tabled.
However, the Education (Student Support) (Amendment) Regulations provide an interesting exception to the rule. Having already been considered in committee on 14 January, the Labour Party decided to use an upcoming allocated opposition day debate on 19 January to table the formal vote to annul the instrument themselves. Opposition days have been used in the past to debate prayer motions but this appears to be the first in recent times to proceed a previous debate on the instrument in committee.
Labour also preceded the formal vote with a two and a half hour debate on the subject. Usually, any formal vote to annul an instrument must be put forthwith without debate if it has already been considered in a Delegated Legislation Committee. The opposition got around this by instead debating a related e-petition that had reached 1000,000 signatures, calling on Parliament to prevent the removal of the maintenance grant.
Last Thursday’s vote was also notable because it was first time that the double majority voting system, introduced through the English Vote for English Laws Standing Order changes, had been used in the Chamber on an SI. On this occasion the government secured the majorities of all Members and MPs for constituencies in England. If it had secured only one of these majorities, the instrument would have fallen.
Having avoided defeat on this particular regulation, the government now faces a further test in this policy area with Money Saving Expert founder Martin Lewis recently confirming his intention to legally challenge the government’s decision to freeze the student loan repayment threshold until at least April 2021.
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Lord Frost’s appointment as Minister of State in the Cabinet Office to lead on UK-EU relations brings some welcome clarity about future government arrangements in this area. However, it also raises challenges for parliamentary scrutiny, above all with respect to his status as a Member of the House of Lords.
There was controversy on 9 February over whether the government had used procedural trickery to swerve a backbench rebellion in the House of Commons on a clause inserted in the Trade Bill by the House of Lords. Apparently, it was something to do with ‘packaging’. What does that mean, and was it true? The answer is all about ‘ping-pong’.
The contrasting post-Brexit fates of the two Houses’ EU-focused select committees have come about through processes in the Lords and the Commons that so far have differed markedly. This difference reflects the distinction between government control of business in the Commons, and the largely self-governing nature of the Lords.
Before Brexit, mechanisms for inter-parliamentary relations and scrutiny of inter-governmental relations in the UK were unsatisfactory. Post-Brexit, the need for reform has become urgent. There should be a formal inter-parliamentary body, drawn from all five of the UK’s legislative chambers, with responsibility for scrutiny of inter-governmental working.
The end of the transition period is likely to expose even more fully the scope of the policy-making that the government can carry out via Statutory Instruments, as it uses its new powers to develop post-Brexit law. However, there are few signs yet of a wish to reform delegated legislation scrutiny, on the part of government or the necessary coalition of MPs.
Parliament’s role around the end of the Brexit transition and conclusion of the EU future relationship treaty is a constitutional failure to properly scrutinise the executive and the law. As the UK moves to do things differently after 1 January, MPs must do more to ensure they can better discharge their responsibilities regarding the making of UK treaties.