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.

Our research into delegated legislation was funded by the Nuffield Foundation.