Up on the committee corridor this morning (10 Nov) was the rather innocuous looking First Delegated Legislation Committee where a group of MPs considered the Prison and Young Offender Institution (Amendment) Rules 2015.

This in fact represented the third attempt by Parliament in 16 days to block a Statutory Instrument (SI) and follows hot on the heels of the two controversial votes in the House of Lords on Tax Credit cuts and Individual Electoral Registration.

However, unlike the two SIs considered in the House of Lords, the SI debated today has very little chance of making it to a substantive vote on the Floor of the House due to a number of ‘quirks’ associated with the scrutiny procedure allocated to this type of instrument.

The Prison and Young Offender Institution (Amendment) Rules 2015 amend a previous instrument from 1999 following the outcome of a recent Supreme Court judgment which found that arrangements allowing prison governors to authorise segregation of a prisoner for periods longer than 72 hours were unlawful because the 1999 instrument required such decisions to be taken under the authority of the Secretary of State.

The revised rules allow governors in a prison, or young offender institution, to authorise continuing segregation beyond 72 hours for a period of up to 14 days (authority for which can be renewed for subsequent periods of up to 14 days). They also provide additional safeguards including a requirement for the Secretary of State to give permission before decisions can be taken to continue segregation beyond 42 days.

However, organisations such as the Howard League for Penal Reform have expressed concern over the amendments, particularly regarding the delay in the requirement for external review of a segregation decision from 72 hours to 42 days.

The Rules are subject to the negative procedure which means that it will become law on a stated date unless a ‘prayer’ motion (so called because of the precise wording used in the formal motion) is passed in either House annulling the instrument. If a member of either House wishes to reject a negative instrument they have to do so within 40 days of the instrument being laid before Parliament.

In the House of Commons, any member can table a ‘prayer’ as an Early Day Motion (EDM). These are motions for which no fixed parliamentary time has been allocated, and therefore whether they are heard is entirely in the hands of the government. If the official opposition tables a prayer motion there is some chance that it will be debated as the whips and business managers can seek to negotiate time for debate through the ‘usual channels’. This was the case with the prison institution Rules in which Labour leader Jeremy Corbyn successfully tabled a prayer motion via an EDM on 26 October.

If time is allocated to debate a prayer on the Floor of the House of Commons, MPs have up to 90 minutes to debate the instrument before voting on the question that the SI be annulled. However, the prayer motion relating to these Rules was referred to a Delegated Legislation Committee because the government successfully moved a ‘motion of referral’ last week. This means that today’s debate (also the final day of the SI’s 40-day scrutiny period) in committee was held on a non-fatal motion ‘that the Committee has considered the instrument’ so the prayer motion still has to be moved to the Floor of the House for the substantive annulment question to be put. This almost never happens because there is no requirement for a subsequent motion to be tabled even if today’s consideration motion was negatived.

Even though the 40-day scrutiny period will have ended, a motion could still be tabled calling for the rules to be revoked rather than annulled, although it would be incumbent on the opposition to use one of their allotted debate days for this to occur. An added complication is that, by then, the Prison and Young Offender Institution (Amendment) Rules 2015 would have been in force for over two months and given that the Ministry of Justice plans to review the impact and success of the amended procedures early next year, the opposition may perhaps be less inclined to pursue revocation after November recess.

Blackwell, J. (2015) Lifting the Lid: The Prison and Young Offender Institution (Amendment) Rules 2015 (Hansard Society: London)