Conservative Government accused of 'waging war' on Parliament by forcing through key law changes without debate

Ministers have used statutory instrument procedure to try and introduce new laws without debate in the Commons

Oliver Wright,Nigel Morris
Monday 18 January 2016 21:51 GMT
The likelihood of a Tory rebellion over the issue, which is prompting a rethink on the cuts, demonstrates the breadth of concern about its effects.
The likelihood of a Tory rebellion over the issue, which is prompting a rethink on the cuts, demonstrates the breadth of concern about its effects.

Ministers are being accused of “waging war” on Parliament by using a little-known device to push through profound and controversial changes to Britain’s laws without proper debate or scrutiny.

Since the election the Conservative Government has used a parliamentary procedure called a statutory instrument to try to introduce swathes of significant new laws covering everything from fracking to fox hunting and benefit cuts without debate on the floor of the House of Commons.

On Tuesday, Labour will take the rare step of attempting to annul a statutory instrument that was used earlier this month to remove maintenance grants from around half a million of the poorest students in England. The changes will mainly hit disabled, ethnic minority and older students.

The policy was not included in the Conservatives’ election manifesto and was nodded through by an obscure Commons committee without the substance of the change being debated.

The move has been described by Labour’s shadow First Secretary of State, Angela Eagle, as an attempt to “govern from the shadows”.

“They are trying to force through sweeping changes in a committee hoping that no one would notice,” she said.

What are statutory instruments?

When the rules governing statutory instruments (SIs) were drawn up after the Second World War, parliamentarians could never have imagined that ministers would come to rely so heavily on them 70 years later.

Between 1950 and 1990 the number of SIs each year rarely rose above 2,500, and the vast majority would have been for local schemes, such as changes to a town’s road layout. But the total rose as government got bigger in the early 1990s and Westminster had to contend with the introduction of European Union legislation as well as complex welfare rules.

Controversially there has also been a trend towards “skeleton Bills” when governments set out plans in general – and say details will be filled in later by statutory instrument.

“Since the election we are seeing more and more Bills coming to the Commons that are effectively empty vessels that give ministers powers through statutory instruments. This is arbitrary rule that massively decreases the power of the Commons to effectively scrutinise the Government.”

Statutory instruments (SIs) were first introduced at the end of the 1940s as a way of freeing up parliamentary time by allowing procedural changes to laws to be made without a full debate in a vote in the Commons.

Over the years their use has mushroomed from just 1,100 in 1982 to more than 3,000 today. Much of the increase took place after the Coalition came to power in 2010.

But what concerns critics is not just the number of SIs being introduced but the significance of the legislative changes that they are introducing.

Since the 2015 election the SIs that have been introduced by the Government include changes to the electoral register that could result in more than a million people being denied the chance to vote, allow fracking under national parks and heritage sites and withdraw winter fuel payments from British pensioners living abroad.

Most famously, George Osborne unsuccessfully tried to use an SI to force through more than £4bn-worth of tax credit cuts without a debate on the floor of the House of Commons.

The growing use of SIs has come under particular fire from the House of Lords, where many SIs are first introduced. The former Tory Chief Whip, Lord Jopling, said: “[It is] an abuse to cut corners and try to enact policies through statutory instruments rather than through primary legislation. I deplore that trend.”

Labour’s leader in the House of Lords, Baroness Smith of Basildon, told The Independent it should be seen alongside other proposals – including limits on freedom of information, changes to constituency boundaries and electoral registration, attempts to choke of Labour Party funding within the Trade Union Bill, and the Lobbying Act.

“When taken together, you could be forgiven for thinking that we’re starting to enter the realms of constitutional gerrymandering. It’s hard not to see what is happening as an authoritarian executive waging war on the institutions that hold them to account.

“With its fear of opposition and loathing of challenge, David Cameron’s government wants to stifle debate, shut down opposition and block proper scrutiny.”

Alistair Darling, the former Chancellor, said there were now “far too many” statutory instruments being used to push through important changes to the law.

“They are an easy way out for ministers,” he said. “And what we have seen is that they are now being used far more frequently because the Government no longer has a majority in the House of Lords.”

As a result, some suspect that the Government is trying to “sneak through” controversial changes by the back door. After the tax credit vote the Government proposed limiting peers rights to reject statutory instruments. This would mean if one was rejected by the Lords, the ministers would simply have to retable it and it would pass automatically.

“The problem is that statutory instruments are not well scrutinised in the Commons and the Lords plays an important role in addressing that. It is a bad way of doing Government business,” Lord Darling added.

The pressure group Big Brother Watch said it was dismayed over moves to introduce a new code of conduct governing snooping powers by secondary legislation.

Renate Sampson, its director, said: “Increasingly we are finding Government tweaking legislation through the side door particularly when it comes to laws involving surveillance powers of the police and intelligence agencies.”

PMQs dominated by housing

Hannah White, the programme director at the Institute for Government, said: “Parliamentary time is limited and therefore there’s always a temptation to do something through secondary legislation which ought to be subject to a more thorough process of scrutiny.”

Joel Blackwell, a senior researcher at the Hansard Society, added: “There is a fear that successive governments are using SIs for administrative convenience rather than what they are supposed to be for.”

Fracking will be allowed under English National Parks and World Heritage Sites after ministers used a statutory instrument to give it the go-ahead without a parliamentary debate last month

How statutory instruments have been used

George Osborne tried to force through £4bn of cuts to tax credits using a “statutory instrument”. The measure was not even debated in the Commons and it was only when the Lords threw it out that the Chancellor was forced to back down.

Fracking will be allowed under English National Parks and World Heritage Sites after ministers used a statutory instrument to give it the go-ahead without a parliamentary debate last month.

Ministers tried to bring back hunting via the back door using a statutory instrument but were forced to drop the measure after the SNP announced it would side with Labour and Tory rebels to block the move.

Ministers defied the advice of the Electoral Commission and used a statutory instrument to bring in individual voter registration a year early.

Up to half a million of the poorest students will lose their entitlement to maintenance grants to study at university – after the Government forced through the cut using a statutory instrument that was not even debated on the floor of the Commons. Labour will attempt to get the cuts overturned on Tuesday.

Late last month the Government announced it would withdraw winter fuel payments from British pensioners living abroad using a statutory instrument. The move is not due to be debated in the Commons.

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