Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
At least 27 pieces of delegated legislation have been laid before Parliament as part of the legislative response to the Ukraine crisis. This body of measures highlights the value that delegated legislation can have when policy is relatively uncontentious and must move fast. It also shows the wide range of delegated powers available on the statute book without the need for new primary legislation.
Senior Researcher, Hansard Society
Dr Brigid Fowler
Senior Researcher, Hansard Society
Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.
After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.
Researcher, Hansard Society
Researcher, Hansard Society
Dheemanth joined the Hansard Society in July 2021 as a Researcher to contribute to the Review of Delegated Legislation. His role also involves supporting the day-to-day delivery of the Society’s legislative monitoring service, the Statutory Instrument Tracker®.
Dheemanth has a diverse professional background that includes experience in both the legal and non-legal sectors. He completed his MBBS degree at the University of East Anglia. He has since attained a Graduate Diploma in Law (GDL) while working full-time as a junior doctor at an NHS hospital trust. He has previously conducted legal research with the hospital’s legal services department. As a research assistant, he has also contributed to a public international law project concerning citizenship and statelessness. Additionally, he has experience conducting scientific and laboratory-based research during his BMedSci degree in Molecular Therapeutics at Queen Mary University of London.
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In the UK’s legislative response to Russia’s invasion of Ukraine, most attention has focused on sanctions (against Russia and Russian firms, institutions, and individuals), and other measures aimed at curbing the freedom-of-action of Russian oligarchs. Parliament passed the Economic Crime (Transparency and Enforcement) Bill in five sitting days in March, and (as of 27 May) nine sets of Russia sanctions Regulations have been laid before Parliament under the Sanctions and Anti-Money Laundering Act 2018. We have discussed the Economic Crime Bill and Parliament’s role in sanctions Regulations elsewhere.
However, the UK’s legislative response to the crisis has encompassed several more fields than sanctions and economic crime; and much of it has been delivered through delegated legislation. Alongside the multiple sets of sanctions Regulations, 18 other pieces of delegated legislation – 16 Statutory Instruments (SIs) and two Statements of Changes to the Immigration Rules - have been laid before Parliament as part of the UK response.
The range of Ukraine-related measures that have been taken shows the value that delegated legislation can have when policy is relatively uncontentious and needs to move fast.
This body of Ukraine-crisis-related delegated legislation is also a reminder of the number and range of delegated powers that already exist on the statute book, under sometimes longstanding Acts of Parliament, ready to be used if needed.
The rest of this post outlines some of the non-sanctions measures which have been taken through delegated legislation as part of the UK’s response to the crisis.
Some measures taken through SIs aim to weaken the Russian and Belarusian economies through restrictions on trade.
The Customs (Additional Duty) (Russia and Belarus) Regulations 2022, laid in late March, increased duties payable on UK imports of certain Russian and Belarusian goods.
The draft Local Government (Exclusion of Non-commercial Considerations) (England) Order 2022, laid before Parliament on 25 May, will – if it is approved – enable ‘best value’ local authorities and parish councils in England, if they so wish, to terminate proposed or existing public supply or works contracts where the origin of supplies to the contractor, or the location of the business activities or interests of a contractor, is Russia or Belarus. In effect, with respect to Russia and Belarus, the Order exempts such authorities from the prohibition on taking non-commercial considerations into account when making contracting decisions. The equivalent measure for national government was taken in a Cabinet Office Procurement Policy Note.
Other measures seek to ease trade and the supply of goods between the UK and Ukraine. On 10 March, the Customs (Import and Export Declarations) (Amendment) Regulations 2022 eased customs procedures on exports from the UK to Ukraine, with the aim of facilitating humanitarian shipments. A further Instrument, the Customs (Export Declarations) (Amendment) Regulations 2022, laid before the House of Commons today (27 May), extended the expiry date of the original measure for a year, from 19 June 2022 to 19 June 2023. Meanwhile, through the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Ukraine) (Amendment) Regulations 2022, measures were introduced on 10 May to fully liberalise import duties under the UK-Ukraine Political, Free Trade and Strategic Partnership Agreement for a 12-month period.
The Genetically Modified Food and Feed (Authorisations) (England) Regulations 2022 authorised the importation and placing on the market of nine Genetically Modified Organisms (GMOs) for food and feed uses. These Regulations were made in response to risks to certain supplies, particularly of maize, as a result of the conflict in Ukraine.
Delegated legislation was required to deliver the Government’s ‘Homes for Ukraine’ scheme and other measures to support Ukrainians’ access to the UK.
At the end of March 2022, the Government made a set of changes to the Immigration Rules to enable Ukrainian nationals with a sponsor to come to the UK under the ‘Homes for Ukraine’ scheme, and to make provision for other people normally resident in Ukraine to come to, or stay in, the UK. Another set of changes to the Immigration Rules in May introduced a requirement that where a child is travelling to the UK without their parent(s) or legal guardian, to join a parent or legal guardian in the UK under the ‘Homes for Ukraine’ scheme, the parent or legal guardian in the UK is required to give consent. The Immigration and Nationality (Fees) (Amendment) Regulations 2022, also laid in May, provide specific fee exceptions for the applications under the scheme.
A suite of SIs has also made changes to a range of domestic policies in order to accommodate the arrival of refugees from Ukraine.
Some SIs make provision for the welfare of the refugees:
The Social Security (Habitual Residence and Past Presence) (Amendment) Regulations 2022 provide refugees with access to certain welfare benefits without passing the Habitual Residence Test. The Child Benefit and Tax Credits (Amendment) Regulations 2022 work similarly.
The Allocation of Housing and Homelessness (Eligibility) (England) and Persons subject to Immigration Control (Housing Authority Accommodation and Homelessness) (Amendment) Regulations 2022 enable local authorities in England to treat as eligible for housing and homelessness assistance residents of Ukraine who left the country as a result of the invasion and who have been granted leave to be in the UK. A sister Instrument made parallel provision for Northern Ireland.
The Homelessness (Suitability of Accommodation) (Amendment) (England) Order 2022, which comes into force on 1 June, opens up a broader supply of accommodation which local authorities can use to discharge their homelessness duties, in order to cope with pressures arising from recent arrivals. The Instrument is currently due to expire on 1 June 2023.
The National Health Service (Charges to Overseas Visitors) (Amendment) (No. 2) Regulations 2022 exempt from the normal NHS charge people who are ordinarily resident in Ukraine but who are now lawfully present in the UK.
The Non-Commercial Movement of Pet Animals (Amendment) (England) Regulations 2022 amended retained EU law to change the rabies-testing requirements for pets, in order to ease capacity strains on the rabies-testing process arising as refugees seek to bring their pets into the country.
Other SIs adjust welfare benefit arrangements in the UK so that those hosting refugees are not disadvantaged as a consequence of their hospitality. The Child Benefit and Tax Credits (Amendment) Regulations 2022 made provision in this respect, as did the Council Tax (Discount Disregards and Exempt Dwellings) (Amendment) (England) Regulations 2022. The Universal Credit (Local Welfare Provision Disregard) (Amendment) Regulations 2022 provided that state ‘thank you’ payments to those hosting refugees would not jeopardise Universal Credit entitlements.
At the Hansard Society, given our focus on Parliament, we normally research and write about delegated legislation which is laid before the legislature.
However, some delegated legislation is not required to be laid before Parliament – including some measures that make up significant elements in the legislative response to the Ukraine crisis.
Among SIs that are not laid before Parliament, Restriction of Flying Regulations – which close areas of airspace at certain times or for certain aircraft – are among the most regularly-used. The Air Navigation (Restriction of Flying) (Russian Aircraft) Regulations 2022 initially imposed restrictions on the flying in UK airspace of aircraft on scheduled services which are owned, chartered or operated by a person connected with Russia, or which are registered in Russia. These restrictions were extended by the Air Navigation (Restriction of Flying) (Russian Aircraft) (Amendment) Regulations 2022 to include all such aircraft (that is, not just ones on scheduled services). The restrictions have since been further extended by the Air Navigation (Restriction of Flying) (Russian Aircraft) (Amendment) (No. 2) Regulations 2022 to prevent any aircraft from flying in UK airspace if it is flying in accordance with a flight plan that includes an aerodrome in Russia.
Another measure that has not been laid before Parliament is the Recognised Stock Exchange (MICEX Stock Exchange) (Russia) Designation Revocation Order 2022, made by HMRC under the Income Tax Act 2007. Following a consultation on a draft, the Order was made in order to revoke the Moscow Stock Exchange’s designation as a recognised stock exchange with effect from 5 May.
Fowler, B. and Vangimalla, D. (2022), Russia-Ukraine crisis: Delegated legislation beyond sanctions (Hansard Society: London)
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