Building on the 'Brady amendment': how can Parliament scrutinise Coronavirus regulations more effectively?

Of the 247 Coronavirus-related SIs laid before Parliament to date, 178 are subject to the ‘made negative’ procedure. This represents 72% of the total, so is broadly in line with the pattern seen in a normal parliamentary session, when ‘made negatives’ account for about three-quarters of all SIs laid before Parliament.

A ‘made negative’ SI: is laid before Parliament after it has been made – signed – into law by the minister, but may be annulled if a motion to do so – known as a ‘prayer’ – is passed by either House within 40 days of it being laid before Parliament. Parliamentary recesses of over four days do not count towards the 40 days.

In the House of Commons, debates on ‘made negative’ SIs are intentionally rare. This form of scrutiny was designed to deal with administrative and technical matters that MPs are unlikely to wish to debate. Over recent decades, however, there has been no clear or consistent correlation between the subject matter of a delegated power and the scrutiny procedure to which the SIs arising from it are allocated. Furthermore, successive governments’ use of delegated legislation has drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail. As a consequence, many SIs subject to the ‘made negative’ scrutiny procedure are no longer anodyne in content or character.

In the context of the pandemic, negative SIs that in ordinary times might have attracted limited interest from MPs have taken on new political importance. The mismatch between the political salience and everyday impact of the regulations and the scrutiny procedure to which they are subject has thus been thrown into stark relief.

Because they were laid as ‘made negative’ SIs, a raft of politically important SIs dealing with policy issues arising from the pandemic have not been subject to active parliamentary debate and approval, even though individual MPs and select committees have expressed an interest in considering them.

For example, MPs have not debated:

• The ever-evolving series of (so far) 16 Health Protection (Coronavirus, International Travel) (England) SIs which set out the list of exempt countries and territories from which passengers arriving into England are not required to self-isolate on arrival.
• The Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations, which extend permissible pre-trial custody by 56 days to a potential total of 238 days.
• The Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020, which allow on-road trials of e-scooters and thus set out what the Secondary Legislation Scrutiny Committee described as a “major development in transport policy”.
• The Prison and Young Offender Institution (Coronavirus) (Amendment) (No.2) Rules 2020, which provide for the potential continued denial of visits to these institutions for up to six months.
• All 16 of the SIs laid so far using powers conferred in the emergency Coronavirus Act 2020.

If an MP wishes to secure a debate on a ‘made negative’ SI, s/he must object to the SI by tabling an Early Day Motion (EDM) in the form of a ‘prayer’. EDMs are motions for which no fixed parliamentary debating time is allocated. Whether an MP’s objection to an SI is ever debated lies almost entirely in the hands of the government, not the House, including in the case of prayer motions tabled in the name of the Leader of the Opposition.

• Of the 178 ‘made negative’ Coronavirus-related SIs laid before Parliament, MPs have only ‘prayed’ against 8.
• Of these prayers, only 1 has been debated.
• A further 3 prayers concerning 3 linked SIs related to planning are to be debated on 30 September. These prayers have all been laid in the name of the Leader of the Opposition, Sir Keir Starmer MP.

Two solutions might be contemplated to the problem of politically important but undebated ‘made negative’ SIs, although neither is particularly satisfactory:

1/ Take the decision about whether a ‘prayer’ motion is debated out of the government’s hands and give it to an alternative body (such as the Backbench Business Committee). At present few such motions are tabled because there is little-to-no expectation that the government will schedule time for a debate. However, given the pressures on legislative time on the floor of the House, this idea is unlikely to find much favour with the government.

2/ An alternative would be to facilitate debates on politically important and contentious ‘made negative’ SIs after the provisions have come into force. Whilst not ideal, a mechanism to enable MPs or select committees to bid for time each month would facilitate some scrutiny of the measures, enabling MPs to review the provisions.

Of the 247 Coronavirus-related SIs laid before Parliament so far, starting in late January, 60 are subject to the ‘made affirmative’ scrutiny procedure. At 24%, this represents an unusually high share of SIs subject to this procedure. By way of comparison, in the whole of the 2017-19 and short 2019 parliamentary sessions just 58 ‘made affirmative’ SIs were laid, of which 48 were Brexit-related.

A ‘made affirmative’ SI: is laid before Parliament after it has been made – signed – into law by the minister, but cannot remain law unless it is approved by the House of Commons and in most cases also the House of Lords within a statutory period – usually 28 or 40 days.

Of the 60 ‘made affirmative’ Coronavirus-related SIs, 52 have been laid using the emergency power conferred on ministers in Section 45R of the Public Health (Control of Disease) Act 1984. This power was inserted into the 1984 Act by the Health and Social Care Act 2008. Parliament thus approved the granting of this power to provide ministers with a mechanism to deal with imminent threats to public health. However, it is not clear that Parliament in 2008 imagined or intended that this power would ever be used for six months and more.

The advantages for government of using the emergency ‘made affirmative’ procedure are clear: the procedure enables ministers to act quickly in response to a fluid public health situation without having to wait for parliamentary scrutiny. Importantly, ‘made’ SIs can also be laid before Parliament during periods of adjournment (that is, weekends and recesses). SIs laid before both Houses in draft form cannot be laid unless both Houses are sitting.

The clear disadvantage of the ‘made affirmative’ procedure is that a measure can be brought into force by ministers immediately, but may not be debated by MPs for many days. This is particularly the case if ‘made affirmative’ SIs are laid before Parliament in the run-up to or during a parliamentary recess. Although such SIs must be approved by both Houses within (usually) 28 days, the clock stops for parliamentary adjournments of over four days. When ‘made affirmative’ SIs are laid during recess, the scrutiny clock therefore does not start ticking until the day the House returns.

How much time has passed between ‘made affirmative’ SIs coming into force and their being debated by MPs?

Of the 60 Coronavirus-related SIs laid before Parliament using the ‘made affirmative’ procedure:

• 8 SIs were revoked before MPs had an opportunity to debate them and one was revoked shortly after MPs debated it but before the approval motion was moved.
• On the basis of the 32 ‘made affirmative’ SIs that have been debated by MPs, the average gap between such an SI coming into force and it being debated by MPs has been 31 calendar days (not counting the day on which the SI came into force and the day on which it was debated).
• To date, the longest wait between an SI coming into force and it being debated by MPs is 61 calendar days (the Pension Protection Fund (Moratorium and Arrangements and Reconstructions for Companies in Financial Difficulty) Regulations 2020).
• To date, the shortest period between an SI coming into force and it being debated by MPs is eight calendar days (the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) Regulations 2020.

Since the House of Commons returned after the summer recess on 1 September, 22 ‘made affirmative’ SIs have come into force, of which 19 have yet to be debated by MPs. In just one week, earlier this month, MPs debated a backlog of 17 SIs laid during the summer recess. The glut of ‘made affirmative’ SIs that both Houses have approved since the summer recess shows that it is entirely possible for the remaining backlog to be cleared relatively quickly, if the government prioritises time for scrutiny. Moreover, while the government argues that it is making every effort to provide time for SIs to be debated as quickly as possible, on 10 of the 15 sitting days so far this month (not including sitting Fridays for Private Members’ Bills), no Delegated Legislation Committees were held in the House of Commons for consideration of Coronavirus-related SIs.

However, speedier scrutiny under current procedures would not address the problem of ‘made affirmative’ SIs being already in force before they are debated.

Two possible reforms might be considered:

1. Require ministers to account for ‘urgency’ at the despatch box

If ministers wish to use the urgent ‘made affirmative’ procedure in future, then MPs should demand that they come to the despatch box on the first sitting day after the SI is made and explain to the House the reasons for urgency. This would not be a legal requirement, but it would force ministers to make a hard-headed assessment of whether the SI they are making really does need to be brought into effect so quickly, or whether a few extra days to facilitate scrutiny would be advisable. A 15-minute slot would suffice to enable the minister to make his or her statement and for the opposition to briefly respond.

Is the urgent procedure always justified? The SIs on face coverings are an example of regulations which arguably did not need to be subject to the urgent ‘made affirmative’ procedure. The government first advised the public to wear face masks on 11 May, but face coverings only became mandatory on public transport on 15 June, in shops and transport hubs on 24 July and in other relevant places on 8 and 22 August. Ministers argued that the legal provisions were delayed after 15 May because the evidence on the effectiveness of face coverings was evolving, but that the provisions were needed by mid-June when the ‘lockdown’ restrictions were eased and therefore footfall in shops, public transport and other areas was increasing.

Ministers will undoubtedly argue that statements of this kind are unnecessary and burdensome. However, the conduct of ministers in recent months has demonstrated that they are needed. If the urgent power is used, the bar is set high for ministers to know, when debating the SI, exactly what their grounds for urgency are and to be able to explain this clearly to MPs. However, on 14 September in the Delegated Legislation Committee scrutinising the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (SI 2020/791), which was laid before Parliament on 23 July, the Health Minister, when challenged to explain the urgent basis of the SI, responded: “I will look further into what the urgency was, but I imagine that the evidence that we were getting at the time was that face coverings could prevent people who might be asymptomatic from spreading or contracting the virus.”

If MPs take the view that oral statements are unnecessary, then the government could provide a detailed written statement instead. There are precedents for this approach. Under Section 41(8) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, ministers are required to explain the ‘urgency’ in order to use that statute’s emergency power provision. An explanation is also required under the urgency procedure for Remedial Orders arising from the Human Rights Act 1998.

2. Require ministers to adopt the scrutiny timetable set out for SIs subject to the urgent procedure in the Civil Contingencies Act 2004

MPs could also seek further procedural comfort by demanding that ministers voluntarily honour the spirit of the urgent provisions in the Civil Contingencies Act 2004. Ministers would not be statutorily bound to do so, but if they demonstrated sufficient goodwill it would represent a pragmatic solution to the debate dilemma. Ministers would be required to schedule a debate and approval motion on a ‘made affirmative’ SI within seven days (rather than 28); and if the House failed to agree the approval motion then the provisions would lapse.

Given the backlog of ‘made affirmative’ SIs to be debated that arose as a result of the summer recess, MPs might also consider whether during a period of adjournment or prorogation the House should automatically be recalled to consider any regulation that has been laid using the urgent procedure. If so, this could be set out in Standing Orders.

Consulting with MPs on future lockdown regulations

The Department of Health published a set of indicative but non-exhaustive local and national lockdown regulations in draft at the end of July to aid future parliamentary scrutiny. The draft regulations are intended to illustrate the ways that government might legislate under the Public Health (Control of Disease) Act 1984, and ministers have indicated that should new categories of intervention be developed in the future then new draft regulations will be developed accordingly.

The Department explicitly stated that it was publishing the draft regulations so that “parliamentarians and the wider public have an opportunity to examine in detail how these regulations might operate and how we may legislate in response to local lockdowns.” However, the draft regulations were published as guidance not a formal consultation and it is unclear how widely they have been circulated. A Health minister did write to the House of Lords Secondary Legislation Scrutiny Committee to elicit members’ views on the draft regulations. However, the Committee’s remit does not extend to commenting on draft regulations that have not been laid before Parliament. Nevertheless, there is clearly an opportunity here for MPs to engage actively with the detail of the lockdown regulations in draft form, to try to improve future iterations of regulations that the government intends will be subject to the ‘made affirmative’ procedure.

Usually, around a quarter of all SIs laid before Parliament are subject to the ‘draft affirmative’ scrutiny procedure. However, of the 247 Coronavirus-related SIs laid before Parliament so far, this procedure applies to just 8 (or 3%).

A ‘draft affirmative’ SI: is laid before Parliament as a draft, and cannot be made into law by the minister unless and until it has been approved by the House of Commons and in most cases also the House of Lords.

The nature of the pandemic, and the decision to legislate often and at speed to tackle it, have led ministers to lay considerably more ‘made affirmative’ SIs than normal and considerably fewer ‘draft affirmatives’.

This is because a ‘draft affirmative’ SI may take between six and eight sitting weeks to complete all its parliamentary stages (government business managers recommend that departments allow a minimum of six sitting weeks). In its current form this procedure thus does not provide for consideration of SIs swift enough as is needed during the pandemic. Understandably, from ministers’ perspective, the ‘draft affirmative’ procedure does not represent a satisfactory alternative to the use of the ‘made affirmative’ procedure. However, from Parliament’s point of view, it would be much preferable to be able to scrutinise affirmative Coronavirus-related SIs in draft, before they become law.

How much time has passed between draft affirmative SIs being laid before Parliament and being debated by MPs, prior to being made and coming into force?

Of the eight Coronavirus-related SIs laid before Parliament using the draft affirmative procedure:

• 7 have been debated and approved (6 by both Houses and 1 by the House of Commons only). One laid earlier this month is awaiting debate by both Houses.
• The length of time it has taken for these 7 SIs to be debated after being laid before both Houses ranges from 13 to 79 calendar days.
• The average length of time it has taken for these SIs to be debated by both Houses is 33 calendar days.

Can the scrutiny of ‘draft affirmative’ SIs be expedited?

Given that it can take six to eight weeks for a ‘draft affirmative’ SI to complete all its parliamentary stages, laying and securing the approval of both Houses for such an SI in perhaps no more than one parliamentary sitting week for Coronavirus purposes would require a special, expedited process.

In the House of Commons, some of the most urgent and politically important SIs could be debated on the floor of the House, rather than in a Delegated Legislation Committee, after which the vote on the motion to approve them could be taken at the end of the debate rather than on a separate day. However, this would provide only marginal gains in the speed of the process. Much greater benefits would come from prompt scheduling by the government of Delegated Legislation Committees and approval motions.

The procedural barrier to expediting consideration of ‘draft affirmative’ SIs lies in the House of Lords, not the Commons. Under House of Lords Standing Order No. 72(1)(a), the approval motion for an affirmative SI cannot be moved until the Joint Committee on Statutory Instruments (JCSI) has reported on the SI. Although the JCSI is a joint committee and is chaired by an MP, no such scrutiny reserve exists in the House of Commons.

What does the JCSI do? The JCSI looks at the technical qualities of an SI and draws the special attention of each House to an SI if it has concerns in areas such as defective drafting or appropriate use of a legislative power. The Committee can report on any grounds which do not go to the merits of, or policy behind, the SI.

The JCSI normally requires an affirmative SI to be laid two sitting weeks prior to the weekly meeting at which the Committee will consider it. This can be shortened, but only a little and rarely. The Committee does not normally consider an affirmative SI unless at least five clear sitting days have elapsed since the day on which it was laid, so that members and other interested parties have time to make representations.

If time is pressing, the government could ask the House of Lords to dispense with Standing Order No. 72, so that the House could consider a motion to approve an SI without the JCSI having reported. There is precedent for this. For example, in 1999 the Labour government moved a motion on 1 July and again on 14 July so that the Lords could consider an SI (or SIs) to pave the way for the setting-up of a power-sharing executive in Northern Ireland, as and when the inter-party talks in Belfast reached agreement.

In such circumstances, because the JCSI’s normal scrutiny requirements will have been breached, the minister is required to write to the Chair setting out the reasons why the SI was not laid sooner and why expedited consideration is necessary. The Committee generally allows expedited consideration “only where compelling reasons” can be shown.

Action in the middle of a pandemic would surely count as a compelling reason to expedite an SI on occasion; but if expedited scrutiny is to be a regular feature of legislative life over the next six to twelve months a bespoke bi-cameral scrutiny process would be a better option. Talks to facilitate such an approach could perhaps usefully be orchestrated by the respective Procedure Committees in each House.