Lifting the Lid: The European Union Referendum (Date of Referendum etc.) Regulations 2016

On Monday 22nd February the government formally laid before Parliament the delegated legislation required to start the official campaign period before the EU referendum.

The European Union Referendum (Date of Referendum etc.) Regulations 2016 formally set the date of the referendum, which will be held on Thursday 23 June, and confirms that the referendum period, in which all campaigners will be subject to spending limits, will begin on Friday 15 April.

The Instrument also prescribes the period for which one campaign organisation can be designated as lead campaigner for each outcome in the referendum by the Electoral Commission. Campaigns can apply to become lead campaigner from Friday 4 March and the Electoral Commission must make its decision by Thursday 14 April, the day before the referendum period begins.

These Regulations are subject to the affirmative procedure which means that both Houses of Parliament must actively approve them before the provisions can come into effect.

Just over 20% of Statutory Instruments laid before Parliament each session are subject to the affirmative procedure, which is usually assigned to more substantial and important pieces of delegated legislation. The vast majority of Statutory Instruments subject to parliamentary scrutiny are subject to the negative procedure, a less stringent form of parliamentary control than the affirmative procedure. Flow charts outlining the process for these two procedures can be found here.

In the House of Commons, affirmative instruments are automatically referred to a Delegated Legislation Committee for debate unless a motion for the instrument to be debated on the Floor of the House is tabled. Regulations relating to terrorism and security are automatically considered on the Floor of the House where they can be debated by all MPs for up to 90 minutes, but more usually the bulk of affirmative instruments are debated in committee.

Delegated Legislation Committees are composed of 18 MPs nominated by the party whips to reflect the composition of the House. Debates in these committees can last up to 90 minutes and are conducted on a motion that ‘the committee has considered the instrument’. Following the debate in Committee, an approval motion is put formally to the House without debate on a separate day. If a debate is held on the Floor of the House, the approval motion question is put immediately after the debate. The vast majority of approval motions in the Commons are resolved without division, but if dissent is indicated the vote is deferred and MPs cast their vote by ballot paper between 11.30am and 2pm on the following Wednesday. This has happened on four occasions in the current session.

In the House of Lords a motion to approve an affirmative instrument can be taken in either Grand Committee or on the Floor of the House. In a similar vein to the House of Commons, if an affirmative instrument is debated in Committee, an approval motion is put formally to the House without debate on a separate day.

Unlike primary legislation, the scrutiny stages for statutory instruments in both Houses run concurrently but the majority of affirmative instruments are approved by the House of Commons before the House of Lords has approved them.

Cabinet Office guidance advises government departments to allow around six sitting weeks for the passage of an affirmative instrument through all its parliamentary stages. This allows for both the Joint Committee on Statutory Instruments and the House of Lords Secondary Legislation Scrutiny Committee to consider the instrument and report on it within 12 to 16 days of it being laid. In the House of Lords, an approval motion cannot be moved until the Joint Committee on Statutory Instruments has reported on the instrument. This is a scrutiny reserve that the House of Commons does not observe.

Given that the instrument prescribes time periods that begin in a little over two weeks, it is expected that its progress through the parliamentary stages will be rapid and not in keeping with the usual 6-7 week process.

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