Are changes to maintenance grants being made through an arcane loophole?

 “The Tories … [are] trying to force through the sweeping changes in committee hoping no-one would notice.”

Angela Eagle, Shadow Business Secretary, 18 January 2016

“How Government uses arcane loophole to bypass Commons and force through new laws”

The Independent, 19 January 2016

“The Government last week pushed this proposal through an obscure House of Commons committee of just 18 MPs with no formal powers to reject the proposal.”

Megan Dunn, President of the NUS, 19 January 2016

The Labour Party held a debate today over the proposals to replace student maintenance grants with beefed-up loans. The government has been criticised for using an “arcane loophole” to push through the changes without a debate in the House of Commons.

The way in which the proposals are being introduced isn’t unusual. The question is whether the government should have made time to hold a debate in the House of Commons on the changes, rather than send them to be debated in a committee.

In the end the debate was held through the time opposition parties are given to hold debates in the House of Commons.

There’s also a wider discussion about the use of this type of legislation by successive governments, and whether it’s being used to cover bigger topics than was traditionally the case.

Not an “arcane loophole”

The way the changes are being put through isn’t unusual or secret (at least to people familiar with the parliamentary system). Over 3,000 laws of the same type as this one—known as ‘Statutory Instruments’—are produced every year, according to the Hansard Society.

Of those, 1,200 are scrutinised by Parliament. The rest go through without being debated.

When an Act of Parliament is made, it often includes powers which mean that further changes, traditionally technical details and administrative changes, can be made without a whole new Bill needing to be passed.

That’s what has happened in this case. The parent act gave the governmentpowers to make rules about grants and loans through Statutory Instruments.

It’s usual for these laws to go through a committee

The parent act determines the level of scrutiny the Statutory Instrument should be given. This particular one becomes law unless the House of Commons or House of Lords votes to remove it before the date it comes into force.

The system is complex but essentially in order to debate it before this time, MPs have to put on record—in what’s known as a ‘prayer’—that they want to annul the law. It can then be debated either in the House of Commons chamber or in a committee called the Delegated Legislation Committee.

When asked about getting a debate on these changes by the opposition, the government said:

“On student finance regulations, the hon. Gentleman is well aware that if he wants a debate on a regulation in this House all he has to do is pray against it. I am not aware of any recent precedent where a prayer made by the Leader of the Opposition and his shadow Cabinet colleagues has not led to a debate in this House.”

Labour says that the government went against this as it sent the proposal to be discussed by the committee rather than in the House of Commons chamber (“this House”). If you interpret “this House” to include committees then the government didn’t go against its word.

The House of Commons enquiry service told us that it’s normal for Statutory Instruments to be debated by this committee rather than in the chamber, as Parliament has limited time to debate these secondary laws.

However, in this case, Labour said that since it did as the government said, and got the signatures of seven different parties, there was “no precedent” for the law to be debated in the committee instead of the chamber. We’ve asked the government to comment.

The committee can’t reject the new rules

MPs in this committee can only vote on whether they’ve ‘considered’ the changes. So it’s correct that they don’t have the power to approve or reject the changes.

Those who disagree with the changes can vote to say that the changes haven’t been considered. If a majority vote to say they haven’t been considered that could then put pressure on the government to have a debate on the changes in the House of Commons.

The vote on the student grant regulations was passed by 10 votes to eight to say that the changes had been considered.

There’s a 90-minute time limit on these debates, which is why it only lasted that long.

Usually no further debate is allowed after the legislation has been debated in the committee. Labour managed to get a debate on the grant regulations by using the time it’s allocated as an opposition party.  The motion to remove the law was rejected.

The use of these secondary laws has been changing

The Hansard Society, a political research and education charity, has said that:

“the use of delegated legislation [which includes Statutory Instruments] by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail.”

So it isn’t just under this government that questions have been raised about the use of this secondary legislation.

In relation to changes to tax credits, which were also put forward via a Statutory Instrument, the Society said:

“Whilst there has been a significant growth in the number of SIs in recent years, such that the scale of what is proposed is not unusual, it does highlight how successive governments have increasingly gone beyond the boundary of reasonableness and acceptability in their use of delegated legislation. Any line distinguishing between legislative principle and detail has long since been obscured and convenience all too often overrides good practice."

For information about the impact of the replacement of the grants with the loans, see our previous factcheck.