Lifting the Lid: The Prison and Young Offender Institution (Amendment) Rules 2015
Share this
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 Prison and Young Offender Institution (Amendment) Rules 2015.
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.
Want to know more about delegated legislation? This 5 minute video with our Director, Dr Ruth Fox, explains what it is and why it needs reforming.
Our research into delegated legislation was funded by the Nuffield Foundation.
Enjoy reading this? Please consider sharing it
Latest
blog / 04.07.19
Freeing ‘Erskine May’: getting the authoritative guide to Parliament’s procedures and practice online
‘Erskine May’, the authoritative guide to Parliament’s procedures and practice, went online on 2 July. The move has significant implications for democratic transparency and for Parliament’s interaction with the public. Here, one of the editors of the new edition, Clerk of the Journals Mark Hutton, explains why and how the innovation came about.
Power of the Purse: what is the Estimates process and how does it work?
Some backbench MPs are seeking to use House of Commons approval of the government’s Main Estimates for 2019-20 as a vehicle against a ‘no-deal’ Brexit, meaning the process is attracting greater interest than usual. We set out how the Estimates process works, how it has changed over the years, and how it could be improved in the future.
The increased stature of select committees and their chairs: reflections by Harriet Harman MP
On the 40th anniversary of the creation of departmental select committees, Harriet Harman, the longest continuously-serving woman MP, offers some personal reflections on the growing importance of select committees and their chairs, particularly at a time of considerable political instability.
The Brecon and Radnorshire recall petition process: personal reflections by Sir Paul Silk
As an elector in Brecon and Radnorshire, Hansard Society Trustee Sir Paul Silk sets out 12 shortcomings he observed in the recall petition process that led on 21 June to the triggering of a parliamentary by-election in the constituency.
Waiting for who? House of Commons business before the summer recess
The focus is on what might happen at the end of the pre-summer Commons sitting period now underway – rightly, given its potential political and constitutional significance. But the dearth of government legislative business means the six weeks before then could present opportunities for the opposition, backbenchers and select committees, including on Brexit.
