STATUTORY INSTRUMENTS – THEY SOUND UNPLEASANT! SO WHAT ARE THEY?
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There’s suddenly lots of talk in the media and beyond about Statutory Instruments (SIs), and lots of people who have never before given them a first thought, let alone a second one, are popping up as experts. So what are they, what are the rules about their approval and why do they matter? Have the modern-day Lords just caused the biggest constitutional crisis for 105 years or is it (as I think) a storm in a tea-cup whipped up by a frightened Government led by angry toffs?
Let me be honest – it’s impossible to write about SIs without getting geeky. Your eyes may glaze over and even if you read the words your brain may start to think of other things. You will probably fail the test at the end. But keep going a bit further and who knows – you might just win that pub quiz next week…
It’s all to do with the law of the land. The main statutes are set out in Acts of Parliament – documents like the Health and Social Care Act. Before they become law they have to be debated several times and approved by both Houses of Parliament – the Commons and the Lords – before being signed off by the Queen.
What are Statutory Instruments?
The main use of SIs is to fill in the detail that is not set out in a lot of Acts, or to change and update some of it as time goes on. They are regulations or orders made by Government ministers on the basis of powers which are set out in the parent Acts of Parliament. They are sent to each House of Parliament for approval before they can become law, but that is on a “take it or leave it” basis. They can be rejected but not amended. They are all described as “delegated”– or secondary or subsidiary – legislation. The primary or parent legislation are the Acts of Parliament.
The next thing you need to know (keep up at the back!) is that there are two main kinds of SI. Some are called “negative” instruments and these are laid before each House of Parliament and come into effect automatically unless they are challenged in either House, in which case a vote can take place in that House. Some are “affirmative” instruments, such as the Tax Credits regulations on which the Government lost two votes in the Lords. These only come into effect after both Houses have voted for them, and that requirement is in the law of the land, so the assumption has to be that if a House has to vote on them it can either approve or reject. Otherwise what’s the point of it?
Fatal Motions on Statutory Instruments
On 26th and 27th October the Lords debated “fatal” motions on three SIs all proposed by Liberal Democrat peers (yeah yeah – “fatal” means that passing them would have killed off the SI) – and two delaying motions which the top House of Lords legal adviser (the Clerk of the Parliaments) said were not fatal, though the Government thought they were. The first proposed by Baroness (Zahida) Manzoor was on the big cuts to Tax Credits. This was lost by 99 to 310 (mainly LD for, Con against, Lab abstained). The two delaying motions from Crossbench Baroness (Molly) Meacher and Labour Baroness (Pat) Hollis were then passed, by 307-277 and 289-272 (mainly LD and Lab for, Con against, with Crossbenchers on both sides).
Next day Lord (Paul) Tyler moved that “a Humble Address be presented to Her Majesty praying that the Order, laid before the House on 16th July, be annulled”. This rather odd wording was needed because the SI in question about Electoral Registration was a negative instrument which (as you now know) comes into effect automatically unless someone challenges it, which is what this so-called “prayer” did. The issue was whether the transitional period for individual electoral registration (instead of the old system of someone registering households as a whole) should come into effect this December as the Government propose, or ín December 2016. If this seems an obscure issue on which to go to the wire, it’s all about potentially rigging elections and rigging the new constituency boundaries. Anyway the prayer was defeated by 246 to 257 so the Government got their way (mainly LD and Lab for, Con against).
The third was another prayer proposed by Baroness (Sally) Hamwee to object to the latest Asylum Support Regulations with stress on the inadequacy of the levels of support for babies and children. This was defeated by 68-194, mainly LDs for, Con against, Lab abstained. So fatal motions on SIs may just be like London Buses – they don’t come along very often but when they come they come in threes – but who can say these issues are not important?
Devil in the Detail
This then is why they matter. They are about nothing less than the law of the land, and if a lot of it is just detail, isn’t that where we all too often find the devil hiding away? That is why they have to have proper Parliamentary scrutiny and the bare fact is that the House of Lords scrutinises secondary legislation much better than the Commons. Cutting the powers of the Lords on these matters would do nothing more than let the Government off the hook by cutting proper scrutiny by Parliament of what they are putting forward. In other words, it’s a recipe for worse laws.