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 Welfare Reform (Northern Ireland) Order 2015.
This week both Houses will consider the Welfare Reform (Northern Ireland) Order 2015. One of the longest and most extensive pieces of delegated legislation published in recent times, the process by which it will be considered in Parliament highlights key concerns about the weaknesses in the scrutiny process, the important role of the House of Lords (possibly under threat as a result of the Strathclyde review) compared to the Commons, and how difficult it is to effectively hold governments to account in a fragile and fractious political environment.
The Order in Council is a result of the Northern Ireland (Welfare Reform) Bill, a piece of enabling legislation arising from the inability of the Northern Ireland Assembly to implement the UK government’s welfare reform programme.
While welfare is a devolved issue in Northern Ireland, there has been an agreed principle that welfare policy in Northern Ireland would broadly mirror the policy in place in the rest of Great Britain. In October 2012, the Northern Ireland administration introduced a Welfare Reform Bill to implement the Westminster government’s Welfare Reform Act 2012, but three years after its introduction in the Northern Ireland Assembly the Bill stalled in committee and ultimately fell at its final stage in May this year.
Amidst growing political instability, an agreement was reached in November between the Northern Ireland Executive, the Northern Ireland Assembly and the UK Government to allow Westminster to legislate for welfare in Northern Ireland.
The Northern Ireland (Welfare Reform) Bill was introduced on 19 November and was “fast tracked” through both Houses of Parliament in just two days. The Bill contained just three clauses, with the most significant clause a delegated power conferred on the Secretary of State to legislate for the delivery of welfare reform in Northern Ireland by way of an Order in Council - the Welfare Reform (Northern Ireland) Order 2015.
This Order was laid in Parliament on 26 November, one day after the Northern Ireland (Welfare Reform) Bill received Royal Assent and it will be considered by both MPs and Peers today and Thursday respectively. The Order is 132 pages long and makes provision equivalent to the Welfare Reform Act 2012 implementing the reforms and the amendments agreed during the passage of the Assembly Welfare Reform Bill. It also allows for Northern Ireland Executive-funded top-ups and various flexibilities not contained in the original Westminster Act but agreed between the Northern Ireland Department for Social Development and the Department for Work and Pensions.
In its Delegated Powers Memorandum the government argued that it was “essential” that the Bill was passed on an emergency basis in order to facilitate the “quickest possible implementation of welfare reform in Northern Ireland.” The Memorandum also argues that there is “insufficient parliamentary time” to take all of the detailed provisions through Parliament as primary legislation. In response, the House of Lords Delegated Powers and Regulatory Reform Committee recognised the “pressing political need for speedy enactment of the Bill” but was critical of its “unfortunate consequences for proper scrutiny” stating that “relegating” so much provision to an Order would “allow for only very limited discussion of its text”.
Although a draft of the Order was published alongside the Bill last week, MPs have not been given long to consider all 132 pages of the Statutory Instrument (SI) and as with all other affirmative instruments they will only have up to one and a half hours to debate its contents. Furthermore Tuesday’s debate will be taking place before the Joint Committee of Statutory Instruments (JCSI) has considered the technical aspects of the instrument, such as whether or not it contains any drafting errors or defects (we would expect the JCSI to report on the Order before Thursday given that House of Lords Standing Order 73 states that an approval motion may not be laid in the Lords until the JCSI has reported on the instrument).
The lack of available time for proper parliamentary scrutiny of the provisions is a genuine concern, but the most controversial aspect of the Welfare Reform (Northern Ireland) Order 2015 relates to its provision of ‘sub-delegated legislation’, whereby an instrument itself confers power on a minister to make further Statutory Instruments.
In its report on the Northern Ireland (Welfare Reform) Bill, the Delegated Powers Committee expressed concern over the “numerous and extensive” sub-delegated powers contained within the Order, particularly in relation to the powers allowing ministers to amend Acts of Parliament by instrument (known as Henry VIII powers). The committee criticised the Delegated Powers Memorandum for failing to even mention this sub-delegation of powers and made clear that it expected powers “of this significance” to be included on the face of the Bill.
The committee heavily criticised the fact that whilst the provisions within the Bill were time-limited, the sub-delegated powers contained within the Order were not. Furthermore the committee expressed its surprise that the sub-delegated powers would only be subject to the negative procedure when the equivalent powers within the Northern Ireland Assembly Bill were subject to the affirmative procedure.
With no opportunity to amend the Order, both Houses are left with the rather unpalatable choice of either accepting an Order containing provisions that a parliamentary scrutiny committee has labelled “extremely unsatisfactory”, or reject it and risk destabilising a very fragile political settlement.
To find out more about our weekly Statutory Instrument Tracker subscription service, contact firstname.lastname@example.org
You can buy our book, The Devil is in the Detail: Parliament and Delegated Legislation.
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
Submitting evidence before the House was to take further decisions on its Coronavirus arrangements, we decried the Leader of the House’s decision to end hybrid proceedings and remote voting as "over-hasty, poorly thought-through, unwise and unnecessary". Our recommendations covered House business, risk management, delegated legislation and select committees.
The new review of the Palace of Westminster Restoration and Renewal project opens up a range of different outcomes for the future of the building. However, with the alarming state of the Palace not changed by the Coronavirus, the government should not use the pandemic as an excuse to downgrade or delay the much-needed repairs.
Jersey’s States Assembly was the first legislature in the Commonwealth to hold a full virtual meeting, with all members able to participate, in order to get around the limitations imposed by the Covid-19 crisis. Mark Egan, Greffier of the States, describes how this was achieved and suggests that some of the States Assembly’s Covid-19 innovations may stick.
The unprecedentedly long delay in appointing the Intelligence and Security Committee (ISC) again exposes the extent to which the work of this parliamentary committee is constrained by the executive. Important ISC inquiries, as well as publication of the Committee’s ‘Russia report’, are being held up.
Should the Liaison Committee have as its chair someone who is not simultaneously a select committee chair, and should the identity of that person be determined by the government? The answer to these questions will tell us much about how this cohort of MPs, particularly government backbenchers, view the relationship between Parliament and the executive.
The extensive take-up of remote evidence-taking by House of Commons select committees during the Easter recess is a significant Coronavirus-induced change of practice. It shows how procedural and technological change can help support scrutiny.