PRIMARY AND SECONDARY LEGISLATION
9. Is terms of volume alone, the majority of legislation
is made not by acts of Parliament (primary legislation) but by
secondary or delegated legislation, also known as statutory instruments
(SIs). In 2003, for example, there was a total of 8,942 pages
of SIs, compared to 3,435 pages of non-consolidation acts.[6]
Typically, delegated legislation is made by the Government using
powers granted by an Act of Parliament. It can take a variety
of forms, including Orders in Council, Rules, Regulations and
Codes of Practice. Many, but not all statutory instruments are
subject to some form of parliamentary control, which usually takes
one of three forms:
a) under the negative procedure (also known as
annulment), an SI is made and laid before Parliament but will
be annulled if either House passes a Resolution calling for it
to be annulled within a particular time-limit, usually 40 days;
b) under the affirmative procedure, an SI must
usually be laid in draft and approved by a Resolution of each
House before it can be made;[7]
c) under the 'super-affirmative' procedure, used
for Regulatory Reform Orders (RROs) and Remedial Orders made under
the Human Rights Act, a proposal for a draft Order is laid before
Parliament and examined by the relevant select committee (Regulatory
Reform or Human Rights); a draft Order is then laid and proceeded
with in a similar way to an affirmative SI (depended, in the case
of an RRO, on how the Committee voted on it).
10. Secondary legislation has the same force in law
as primary legislation, except that a court may consider whether
the Government was properly exercising the powers conferred on
it by Parliament in making the legislation, whereas it cannot
look at the processes leading up to the passage of an Act of Parliament.
To the extent that currently few SIs take up any Parliamentary
time and that those that do are generally taken in standing committee,
in a debate which may last up to one and a half hours, they have
little bearing on Parliament's capacity to consider legislation.
However there is concern in some quarters at the growing use by
Government of SIs and if this led in due course either to moves
to give Parliamentary time to consider more SIs or to moves to
reduce the number and include more provisions in primary legislation
this would have an effect on Parliament's capacity to consider
legislation.
11. The factors affecting the volume of legislation
are numerous and complex. Some are within the Government's control
and some are not. The passage of defective legislation, in the
sense of legislation which is unclear, unworkable or fails to
do what it was intended to do, in itself creates the need for
remedial, amending legislation, which in turn increases the legislative
workload in subsequent years. Although some witnesses suggested
that reducing the volume of legislation would serve to improve
its quality, the volume of legislation is largely a function of
the programme of the government of the day rather than a matter
of procedural changes in the House. However, there
are ways in which the flow of legislation can be managed effectively
to ensure that, subject to the size of the Government's legislative
programme and the constraints of the Parliamentary year, the best
possible use is made of Parliamentary time in order to provide
the most effective scrutiny of bills. They include:
a) publishing
bills in draft for pre-legislative scrutiny before they begin
their formal Parliamentary stages;
b) making
appropriate use of carry-over to smooth the flow of bills throughout
the Parliamentary year;
c) using
programming to ensure that adequate time is available for each
stage of a bill; that time is not wasted, for example, by programming
committee proceedings to finish several weeks before time can
be found for remaining stages; and that the available time is
allocated appropriately to different parts of the bill; and
d) adopting
a flexible approach to the time available to each bill, making
more time available where it is needed, less where it is not.
In the rest of this Report, we consider ways in which
these measures and others can be used to promote better scrutiny
of primary legislation and, ultimately, better law.
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