Thread by @RuthFox01

🧵1/ Interesting test of govt’s commitment to parliamentary scrutiny coming up this week. Will the Statutory Instrument(s) introducing new #Coronavirus restrictions to tackle the #OmicronVariant be debated in a timely way after they are laid before @UKParliament on Mon (29/11)?

2/ Article by @benrileysmith in the @DailyTelegraph suggests not. He cites @sajidjavid on the @AndrewMarr9 programme saying that the govt may not schedule a debate on the SI(s) until mid-December as they only have to hold a vote within 28 days.
telegraph.co.uk/politics/2021/…

3/ There are a few important things to unpick here. There may be more than one Statutory Instrument (SI). Travel and face covering SIs have previously been made using powers in the Public Health (Control of Diseases) Act 1984 but subject to different scrutiny procedures.

4/ Previous SIs introducing restrictions re international travel (testing, self-isolation, quarantine etc) have been subject to the ‘made negative’ scrutiny procedure; the face covering SIs have been subject to the ‘made affirmative’ scrutiny procedure.

5/ ‘Made negative’ and ‘made affirmative’ SIs are laid before Parliament after they have been made (signed) into law by the minister. But not all SIs are debated after laying before Parliament. Here’s where the distinction between ‘negative’ and ‘affirmative’ SIs comes into play

6/ A ‘made negative’ SI like the international travel regs does not require parliamentary debate or approval; but under s5 of the Statutory Instruments Act 1946 the SI may be annulled if a motion to do so (aka a ‘prayer’) is passed by either House within 40-days of it being laid

7/ But whether an MPs ‘prayer’ requesting a debate on a ‘made negative’ SI is granted is in the gift of the govt owing to its control of parliamentary time. In the last session only 8 of over 800 ‘made negative’ SIs were debated, as I explained here: hansardsociety.org.uk/blog/end-of-se…

8/ A ‘made affirmative’ SI like the previous face covering regs does require active parliamentary approval. The SI 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 – in this case within 28 days.

9/ SIs subject to the affirmative procedure are debated for up to 90-minutes in a Delegated Legislation Committee (DLC) or in the Chamber followed by a vote to approve the instrument. Again, the timing of the debate is up to the govt due to its control of the timetable.

10/ But just because the govt has up to 28 days to schedule a debate & vote to approve an SI doesn't mean they have to wait that long. If ministers decide not to schedule the debate but run down the clock that’s a matter of choice and convenience, not procedural or legal hurdles

11/ So if a ’made affirmative’ SI is laid tomorrow (29/11) the govt could schedule the debate early this week as @Mark_J_Harper and other MPs are suggesting (the parliamentary handling of this issue will be another test of the govt's relationship with many of its backbenchers)

12/ In Sept 2020 the govt, under pressure from its own backbenchers, promised that for significant national measures with effect in the whole of England or UK-wide the govt would hold votes wherever possible before regulations come into force.

13/ The govt has indicated new regs will be laid before Parliament on Mon (29/11) & come into force on Tue (30/11). If so this promise cannot reasonably be met. But it could hew to the spirit of the promise by scheduling the debate as soon as possible on Tue (30/11) or Wed (1/12)

14/ Scheduling business is difficult at the best of times. This week there's an Opposition Day Debate on a motion to be decided by the SNP, Cmtt stage of the Finance Bill & debates nominated by the Backbench Business Cmtt. Something will have to give.

15/ The govt will almost certainly have to make a statement to MPs setting out the latest news on the #OmicronVariant probably tomorrow (29/11). Watch out for suggestions that MPs will thus have had an opportunity to debate the new restrictions

16/ But debate about restrictions in the abstract during a ministerial statement (when the SI may have only just been published or still not be available) is no substitute for detailed scrutiny of the often complex legal text of a specific SI(s)

17/ The govt has promised to review the measures in 3 weeks time; another reason MPs should be wary about any delay in debating & approving any new regulations. If the govt decides the restrictions are no longer needed the SI(s) could fall away without ever being debated.

18/ The ‘made affirmative’ procedure - and thus the 28-day provision for debate and approval - is usually used rarely because of the link to ‘urgency’ or ‘emergency’. But since the start of the pandemic the govt has used the procedure 109 times.

19/ You can get all the latest stats on the @HansardSociety #Coronavirus Statutory Instrument Dashboard hansardsociety.org.uk/publications/d…

20/ The @HansardSociety is conducting a Review of the scrutiny process for SIs. Important constitutional issues are at stake. To find out more, check out the Society's Delegated Legislation Review hansardsociety.org.uk/projects/deleg…

21/ And if you want to keep up to date with the latest news, data and insight about these issues sign up to the @HansardSociety newsletter (END) hansardsociety.org.uk/about/subscrib…