Blog

Lifting the Lid: The European Union Referendum (Voter Registration) Regulations 2016

9 Jun 2016
null
Image licensed under the Creative Commons Attribution 2.0 Generic

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
,
Senior Researcher, Hansard Society

Joel Blackwell

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.

Get our latest research, insights and events delivered to your inbox

Subscribe to our newsletter

We will never share your data with any third-parties.

Share this and support our work

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.

Latest

Blog / ‘Brexit Freedoms’ Bill: Is Jacob Rees-Mogg planning to give Parliament more control over Retained EU Law?

How Parliament will scrutinise changes to Retained EU Law (REUL) has been a matter of concern since the Government announced it would introduce the ‘Brexit Freedoms’ Bill. The Minister for Brexit Opportunities has now suggested Legislative Reform Orders (LROs) as a possible solution. But what are LROs and what would this mean for scrutiny of REUL?

21 Jul 2022
Read more

Blog / When is a 'cross-party Committee' no longer cross-party? The case of the European Scrutiny Committee

The long-term near-absence of Labour participation in the work of the House of Commons European Scrutiny Committee means that the Committee is not operating as a fully cross-party Committee. Especially given the way in which the Committee’s role is changing since Brexit, this needs fixing, fast.

21 Jul 2022
Read more

Briefings / The Northern Ireland Protocol Bill: Delegated Powers

The Northern Ireland Protocol Bill is scheduled for its Second Reading debate in the House of Commons on Monday 27 June 2022. This briefing on the delegated powers in the Bill analyses six areas of particular concern and proposes ways they might be mitigated during the Bill's passage through Parliament.

24 Jun 2022
Read more

Reports / Compendium of Legislative Standards for Delegating Powers in Primary Legislation

The scope and design of the delegation of legislative powers in any Bill affects the long-term balance of power between Parliament and Government. The House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) scrutinises all such delegation. This report distils standards for the delegation of powers from 101 DPRRC reports from 2017 to 2021.

25 Apr 2022
Read more

Blog / Finding grace under pressure? Ukraine’s parliament at war

After over 70 days of total war, the first 43 under the very direct threat of bombing, Ukraine’s parliament, the Verkhovna Rada (Supreme Council), has undergone a significant transformation in terms of procedures, political orientation and constituency work.

13 May 2022
Read more