What are statutory instruments, and do they show “contempt for democracy”?

A parliamentary device that can stop MPs voting on controversial bills.

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What is a statutory instrument?

It is a special ceremonial horn John Bercow plays every time a bill is passed in the Commons.

Really?

No.

Oh.

Statutory instruments are a type of legislation.

What do they legislate for?

They are used to allow an existing Act of Parliament to be altered without having to pass a whole new Act.

What’s the point?

To introduce new bits of law without having to go through the whole process of passing legislation starting from scratch (ie. having MPs scrutinise it and vote for it in the chamber).

Why does the government have the right to do this?

At the simplest level, it allows ministers to make more detailed orders, rules or regulations following an Act of Parliament. Acts are usually the broad framework, and statutory instruments are used subsequently to provide the necessary detail that would be too complex and technical to include in the original Act. As well as fleshing out the detail, statutory instruments can be used to amend, update or enforce existing legislation.

Who passes them then?

They get voted on in legislation committees by small groups of MPs after short, low-profile debates.

Hmm. This doesn’t sound very democratic.

Well, often statutory instruments are necessary. It would be pointlessly time-consuming and over-the-top to start a whole new Bill every time tweaks and extra details are required for an Act of Parliament that has already been passed (statutory instruments are also referred to as “secondary”, “delegated”, or “subordinate” legislation, which gives you an idea of where they come in the legislation hierarchy).

But the government could abuse them...

Yes. And that’s what people are worried about. The Indy ran a frontpage story on them today, calling the device “a contempt for democracy”. Here it is:

Looks dramatic. What are they so worried about?

They’ve noticed the government sneaking controversial laws through via statutory instruments, rather than letting MPs debate and vote in the Commons.

For example?

The most high-profile recent example is George Osborne’s attempt to use one to push through his tax credit cuts – and then being furious when it didn’t work (MPs didn’t get to debate it, but the Lords defeated it, leading to the Tories trying to curb the power of peers to throw out statutory instruments).

Other examples include removing maintenance grants, changes to the electoral register that could see a million people losing their vote, allowing fracking under national parks and heritage sites, winter fuel allowance cuts to expat pensioners. There are even moves to pass a new code of conduct for police and intelligence agency surveillance powers via a statutory instrument.

Haven’t governments always snuck unpopular laws in through the back door?

The worry is that the use of statutory instruments has been increasing under the Tories. Here’s a little chart from Legislation.gov.uk (click to enlarge):

So are there plans to stop them doing this?

Sort of. Labour is taking the (unusual) step of trying to annul the statutory instrument that was passed to remove maintenance grants. The idea is that if it keeps kicking up a fuss like this, the government might be less inclined to use statutory instruments so brazenly for politically controversial policies. 

Will it work?

Probably not. Labour has to use opposition day debates to do this, and time (and, often, attendance) for those is limited.

Anoosh Chakelian is senior writer at the New Statesman.