The Rules strengthen disciplinary sanctions for prisoners aged 21 and over. They introduce powers to withdraw or restrict social visits, with exemptions for visits from prisoners’ children under 18 and accompanying adults. They also double, from 42 to 84 days, both the maximum period for withdrawing privileges and the additional days independent adjudicators can add to a prisoner’s sentence.

The House of Lords Secondary Legislation Scrutiny Committee (SLSC) identified significant gaps in the Government’s explanation of the policy. The Ministry of Justice has not modelled the impact of longer disciplinary penalties on prison capacity. Questions also remain about the consequences of restricting visits for rehabilitation and behaviour, and whether the department sufficiently understands the scale and causes of prison indiscipline.

These concerns go to the foundation of sound policy-making: understanding the problem before deciding how to address it. During the debate, Lord Thomas of Cwmgiedd, a former Lord Chief Justice of England and Wales, asked why disciplinary offences were rising and inferred that Ministers could not determine the most effective way to prevent them if they did not know the answer to the first question.

Lord Garnier, a former Solicitor General, challenged what he described as two inconsistent justifications for the changes: that rising violence and rule-breaking required stronger sanctions, and that shorter periods in custody under the Sentencing Act 2026 required governors to have greater powers to keep prisoners in prison.

The Minister maintained that stronger sanctions are needed for serious or persistent rule-breaking, and that restricting visits should be a last resort. But the SLSC has pressed the Government to explain how the effects will be monitored and reported. Without adequate data and evaluation, how would Ministers know whether the measures were working or creating further problems?

This is Parliament performing an essential role: testing the evidence, questioning assumptions, and requiring Ministers to explain how their policies will work in practice.

The Rules are a form of Statutory Instrument subject to the ‘made negative’ procedure. They became law without requiring a debate or approval vote in either House and have been in force since 2 September. They were laid before Parliament on 22 June, five days after the Minister signed (‘made’) them into law. The statutory 40-day period for annulling them expired on the 8 September, six days after they came into force.

The scrutiny procedure is inherited from the legislative powers under which the Rules were made: the Prison Act 1952. Decisions taken by Parliament 74 years ago therefore determine how these Rules are scrutinised today, regardless of their content or potential effects. Parliament cannot tailor the scrutiny to the significance of the proposals before it, even when they raise substantial questions about rehabilitation and pressure on prison capacity.

The Minister, Baroness Hyde of Bemerton, defended this approach during the debate, arguing that “Parliament has long considered secondary legislation the most appropriate for matters concerning the management of prisoners, via the Prison Rules, as it allows flexibility to amend the regulations.”

Flexibility can be valuable, but it is not sufficient justification for allowing Ministers to make extensive policy changes through procedures that provide so little opportunity for Parliament to influence the detail. The greater the discretion delegated to Ministers, the stronger the arrangements needed to test how they use it. Administrative convenience cannot substitute for evidence, explanation, and accountability.

By the time of this debate, Peers could record their objections and press the Minister to respond, but they could no longer annul the Rules. A regret motion carries no legal consequences. Whether the scrutiny produces stronger safeguards, better monitoring, or changes to the legislation depends on Ministers choosing to act.

The problem is therefore not rooted in disagreement about one particular aspect of prison policy. Parliament can identify shortcomings in delegated legislation yet lack an effective route to ensure they are addressed.

At its best, parliamentary scrutiny is a form of institutional quality control. It tests whether the evidence supports a policy, the powers sought are proportionate, implementation plans are credible, and the trade-offs have been acknowledged. These questions matter to the performance of our economy and vital public services – in this case, the effective working of the prison system. When such questions go unanswered, the costs can emerge as poorly developed policies, badly designed laws, wasted money, and public services that fail to deliver.

The growth of executive power, alongside the weakening of a culture in which Ministers must explain and justify their decisions to Parliament while there is still time to influence them, has contributed to policy failure in too many areas. Too often, parliamentary procedures allow concerns or objections to be aired only after legislation has taken effect, when scrutiny offers little practical prospect of securing changes. This risks reducing scrutiny to mere political theatre and weakens Ministers’ incentive to engage seriously with it. Reforming delegated legislation would require Ministers to defend their proposals when parliamentary challenge can still improve them – an essential step towards better government.

Under our proposed system, Statutory Instruments would normally be laid in draft, allowing Parliament to examine proposals before Ministers make them into law. A joint sifting committee of both Houses would assess each SI for legal, policy, or political concerns requiring closer examination. Uncontroversial instruments could proceed quickly, concentrating parliamentary attention where it could make the greatest difference.

A new Parliamentary Office of Statutory Instruments would provide specialist analysis to support this work. It would help MPs and Peers to distinguish routine measures from those requiring closer attention, to identify inappropriate uses of delegated powers, and to test ministerial justifications.

An SI raising concerns, such as these Prison Rules, could be referred to a Regulatory Policy Scrutiny Committee in the Commons. Supported by specialist expertise, such a Committee could seek further information or take evidence from Ministers, officials, and stakeholders. The Committee could pursue the questions identified by the SLSC and press for answers while there is still time to act. Approval could be delayed if Ministers failed to provide essential supporting information.

Our proposed Lords ‘think again’ procedure would give Peers a constructive alternative to the present extremes of either recording objections through a toothless regret motion which has no legal effect or else rejecting an SI outright. Peers could formally refer their concerns to the Commons, requiring MPs to consider and respond to them.

MPs could then make approval conditional on Ministers making specified changes, through amendments to the approval motion. Ministers would retain responsibility for drafting and revising the SI itself, respecting the principle of delegation and avoiding a potentially prolonged exchange of textual amendments between the two Houses. If Ministers resisted the changes, they would have to persuade the Commons to approve their original proposals despite MPs having already voted for modifications.

The purpose is to help Ministers deliver policies that are better prepared, properly evidenced, and more likely to work. The system would allow routine measures to proceed quickly while creating stronger incentives for Whitehall to improve the preparation of more significant proposals.

Knowing that Parliament could require answers and seek changes would put pressure on departments to strengthen their policy-making practices: to collect reliable data, prepare meaningful impact assessments, test implementation plans, and establish how outcomes would be evaluated. Early engagement with scrutiny could resolve concerns before a contested vote became necessary.

Bypassing substantive parliamentary scrutiny may save time at the outset, only to create greater delays through policy reversals, legal challenges, and implementation failures. Effective scrutiny brings those risks into view while there is still time to address them. It can also strengthen public confidence: decisions carry greater authority when people can see that the arguments have been tested and that Ministers have addressed the objections.

Applied to these Prison Rules, our reforms would have created an opportunity to examine the evidence, address gaps in the Government’s analysis, and secure improvements before the measures took effect. Ministers would remain responsible for their policy, but Parliament would be better equipped to hold them to account. The objective is smarter scrutiny that improves policy-making and helps ensure the resulting law works as intended.

Fox, R. (6 November 2026) Prison rules expose Parliament’s scrutiny problem: questions without consequences, Hansard Society blog