Our Lifting the Lid series aims to open up the delegated legislation process to reveal the stories behind some recently published Statutory Instruments. This week: The European Union Referendum (Voter Registration) Regulations 2016.
Joel Blackwell
Senior Researcher, Hansard Society
Joel conducts the Society’s continued research into the legislative process, the effectiveness of Parliament in scrutinising and holding the executive to account and the public’s engagement with politics.
He is co-author of 'The Devil is in the Detail: Parliament and Delegated Legislation'. Prior to joining the Hansard Society in 2014, Joel was a Political Consultant for Dods Parliamentary Communications and has also worked at the Electoral Commission. He graduated from Bristol University in 2005 with a degree in Politics and Social Policy.
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Today, both Houses of Parliament will consider the European Union Referendum (Voter Registration) Regulations 2016, an emergency Statutory Instrument (SIs) which will extend the voter registration deadline for the EU referendum. This is being introduced as a result of the technical problems suffered by the government’s data website on Tuesday night which resulted in some people unable to register before the original deadline.
These draft 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. On average it takes around six to seven sitting weeks for the passage of an affirmative instrument through all its parliamentary stages. However, the EU draft regulations will be subject to ‘fast-tracked’ parliamentary scrutiny and all its stages will be completed today.
Traditionally, the justifications of the use of delegated legislation have centred on the need to elaborate complex detail, the need for flexibility and adaptability, and perhaps more importantly, the capacity to act in times of emergency. While the debate on the use of SIs in recent times has tended to focus on the negative aspects of the delegated legislation system and in particular, the use of SIs by successive governments in ways that were not originally intended, the circumstances surrounding these EU regulations highlights the importance of delegated legislation and the capacity it allows for governments to meet unforeseen contingencies and crises.
There are three types of affirmative instrument, the most common of which is the draft affirmative SI. A second type, the made affirmative procedure, in which the instrument comes into effect immediately but cannot remain in force if rejected by any House of Parliament, is the best procedure for ‘fast track’ delegated legislation but can only be used if it is the specified procedure within the parent act in which the SI is made under. The power to make the European Union Referendum (Voter Registration) Regulations 2016 is taken from the EU Referendum Act 2015 which specifies that it is to be made as a draft affirmative instrument and can only come into effect once it has been approved by both houses and signed off by the relevant minister.
In the House of Commons, affirmative instruments are automatically referred to a Delegated Legislation Committee for debate. Following the debate in Committee, an approval motion is put formally to the House without debate on a separate day. In order to fast-track an SI, the government can table a motion for the instrument to be debated on the Floor of the House where the approval motion question is put immediately after the debate. As with debates held in delegated legislation committees, MPs will have 90 minutes to debate the instrument.
Unlike primary legislation, the scrutiny stages for statutory instruments in both Houses run concurrently. 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 on the Floor of the House, the approval motion question is put immediately after the debate.
The one key procedural change for ‘fast-tracked’ affirmative SIs is that the House of Lords will have to dispense with Standing Order 72 which provides that an approval motion cannot be moved until the Joint Committee on Statutory Instruments (JCSI) has reported on the instrument. This is a scrutiny reserve that the House of Commons does not observe. Normally the JCSI will try to report on an instrument within 12 to 16 days of it being laid.
Following today’s House of Lords debate on the instrument, shadow leader of the House of Lords, Baroness Smith of Basildon, has a debate on the ‘balance of power between the Government and Parliament’, a debate which will no doubt touch on the recommendations of the Strathclyde Review into secondary legislation and the primacy of the House of Commons. Interestingly, the Strathclyde Review proposes the creation of a new procedure that would provide the House of Commons with an opportunity to ‘think again’ in the event of disagreement with the Upper House, and ultimately override any Lords vote to reject an SI. If implemented, this new procedure could potentially complicate matters for ‘fast-tracking’ delegated legislation in the future, particularly if a fixed period of delay before the Commons can override the Lords is introduced.
The UK Spending Review outlines how Government funds will be allocated over several years. Unlike the Budget, which raises revenue, the Review decides how it is spent. But how is it approved? What role does Parliament play if it doesn’t vote on the Review itself? This blog explores how the Spending Review works, how it differs from the Budget, and how Parliament holds the Government to account through the Estimates process.
On Friday 13 June, the House of Commons will once again debate the Terminally Ill Adults (End of Life) Bill, which would legalise assisted dying in England and Wales. Specifically, it will hold a second day of Report Stage, during which the whole House will debate and vote on amendments. This briefing explains the structure of Report Stage, what happened on the first day of Report Stage, how amendments are selected and grouped, on which amendments a decision can still be taken, and the likely sequence of events this Friday, including whether a final vote will take place.
The Chancellor, Rachel Reeves MP, will deliver a statement on the Spending Review. MPs will resume Report Stage of the assisted dying bill and debate key legislation on football governance, mental health, and planning and infrastructure. Peers and MPs are expected to resolve their standoff over AI and copyright in the Data (Use and Access) Bill. The Commons Defence Committee will hear from the lead reviewers of the Strategic Defence Review, while a Lords Committee will examine the Chagos Archipelago sovereignty issue. The Hansard Society’s Director will give evidence to the Modernisation Committee about access to the House of Commons and its procedures.
In this episode, we explore why ministers keep bypassing Parliament to make major announcements to the media — and whether returning to the Despatch Box might help clarify their message. We unpack the Lords' uphill battle to protect creators’ rights in the Data Use and Access Bill, challenge claims that the Assisted Dying Bill lacks scrutiny, and examine early findings from a Speaker’s Conference on improving security for MPs, as threats and intimidation against politicians continue to rise. Please help us by completing our Listener Survey. It will only take a few minutes.
Our evidence on treaty scrutiny has been published by the House of Lords International Agreements Committee. Our submission outlines the problems with the existing framework for treaty scrutiny and why legislative and cultural change are needed to improve Parliament's scrutiny role. Our evidence joins calls for a parliamentary consent vote for the most significant agreements, a stronger role for Parliament in shaping negotiating mandates and monitoring progress, and a sifting committee tasked with determining which agreements warrant the greatest scrutiny.
