Memorandum by the Hansard Society
The Hansard Society is very pleased to be able
to contribute to the Merits of Statutory Instruments Committee
inquiry into the Management of Secondary Legislation. Over the
past two years, we have been undertaking a review of Making
the Law, the 1992 report of the Hansard Society Commission
on the Legislative Process, chaired by Lord Rippon of Hexham.
As part of that review, we have looked at specific elements of
the legislative process including parliamentary consideration
of delegated legislation.
We note the Committee's terms of reference for
this inquiry, many of which relate to the formulation, drafting
and structure of delegated legislation. Our work on this subject
has concentrated on the parliamentary process, rather than the
role of government, and our evidence reflects this focus. We draw
attention to the numerous proposals for reforming the way that
Parliament considers delegated legislation which have been made
by the Hansard Society and also by parliamentary committees.
2. THE SCOPE
Perhaps the most noticeable feature relating
to delegated legislation is the extent of its growth in volume
over the past half-century. For example, in 1970, Statutory Instruments
(SIs) filled 4880 pages of legislation; by 1996 that had grown
to 10,230 pages.
In itself, this growth does not necessarily give rise to any concern.
Indeed, delegated legislation has an invaluable role to play within
the legislative process: crucially it can be used to amend, update
or enforce existing legislation without having to go through the
elaborate parliamentary process required for primary legislation.
Modern government would be virtually unable to function without
it. As Making The Law argued:
"The main advantages of making greater use
of delegated legislation outweigh the very real disadvantages
. . . [it] makes Acts easier for the user to follow, helps Parliament
to focus on the essential points . . . [and keeps] the legislative
process flexible so that statute law can be kept as up to date
as possible . . . [and eases] pressure on the parliamentary timetable."
3. CONCERNS AND
However, given its crucial role within the legislative
system, there is widespread criticism of the way that Parliament
scrutinises and gives its authority to delegated legislation.
The majority of SIs are subject to little, if any, parliamentary
scrutiny. This is because most SIs are subject to negative procedures,
which means they will become law in the form determined by a Minister
unless one or other House of Parliament votes against them, which
very rarely happens.
Most criticism of the system is concerned with
the negative resolution procedure where the initiative lies with
the Opposition to table appropriate annulment motions in the form
of Early Day Motions (known as "prayers"). Given that
the Government controls almost all the available parliamentary
time in the Commons, unless the Opposition can persuade the Government
to provide time, either on the floor of the House or in Standing
Committee, the SI will not be debated.
On the other hand, a minority of SIs are subject
to affirmative procedure, which means that they cannot become
law unless a draft is first approved by both Houses. The affirmative
procedure, however, is much less common than the negative procedure.
For example, in 1998-89, 178 SIs were subject to the affirmative
procedure, compared to 1,266 subject to negative procedures.
A range of problems with the procedures have
been identified, including:
That the unpredictability and rigidity
of the parliamentary timetable, and the inevitable time constraints,
militate against effective scrutiny.
That SIs cannot be amended in part
That the length, volume and technical
complexity of many SIs can obscure important issues with the result
that major changes to law and policy can come into force with
little or no parliamentary scrutiny.
That the implications of an SI for
other domestic or EU legislation may not be immediately apparent.
The increasing instance of SIs being
used to implement core policy decisions rather than fill out the
detail of statutes.
The Hansard Society has identified a number
of specific reforms that might improve the functioning and scrutiny
of delegated legislation, including:
Departmental select committees should
review SIs in their field prior to their being laid before Parliament
and then report on matters of particular public importance. By
identifying matters that required further clarification or justification,
such pre-legislative scrutiny would reduce the heavy workload
of the Joint Committee on Statutory Instruments (JCSI).
Debates on SIs (under the affirmative
procedure and those against which prayers had been tabled) should
only take place once the JCSI has reported.
A Legislation Steering Committee
should be set up to determine which prayers should be debated,
thus standardising the procedure and allowing Parliament more
input into the allocation of such debates.
The time limit (of an hour and an
half) imposed on debates should be removed.
Once an SI had been selected for
debate, a Special Standing Committee should undertake more detailed
A range of reform proposals were also put forward
by the House of Commons Procedure Committee, which produced two
reports, in 1996 and 2000.
A range of other mechanisms and procedures would
bring more detailed scrutiny into the process:
The introduction of a sifting (merits)
committee in the Commons, equivalent to that established in the
House of Lords. (See paragraph 6).
Conditional amendments: The Procedure
Committee has raised the possibility of conditional amendments
to SIs whereby an SI could be rejected but the terms under which
it would be acceptable would be indicated. The Commission to Strengthen
Parliament described this as an "eminently sensible"
solution and argued that this represented the best way to proceed.
Use of Ministerial Statements: When
SIs are discussed in committees, proceedings should begin with
a ministerial statement and questions, as in the case of Commons'
European Standing Committees.
Greater use of pre-legislative scrutiny:
Select committee involvement might be a way to raise public and
media awareness of certain important proposals and to test the
climate of opinion.
Post-legislative scrutiny of SIs:
As with primary legislation, it would be open to departmental
select committees to commission research on the effect of particular
SIs or to undertake a short inquiry.
Extending the deregulation procedure:
Blackburn and Kennon put forward the use of deregulation procedures
as a model for better scrutiny of SIs, arguing:
"The only substantial improvement
in parliamentary scrutiny of [delegated] legislation in recent
years has been the introduction of deregulation orders. The deregulation
procedure could be used for other SIs amending primary legislation,
provided an Act was passed defining the categories other than
the deregulation to which it would apply."
External consultation: Most draft
social security delegated legislation is referred by the Government
to the Social Security Advisory Committee (SSAC) before being
presented to Parliament. The SSAC consults with public and interested
bodies. The Secretary of State is obliged to take account of the
SSAC's recommendations (although is not bound by them) and when
the regulations in question are laid before Parliament, the SSAC's
report and a statement explaining the Government's responses to
the recommendations must also be laid. This model of consultation
may be appropriate in other specific areas of legislation.
Lessons from Scotland: The Scottish
Parliament's procedures for dealing with secondary legislation
involve a designated role for its committees and a guaranteed
level of scrutiny. Westminster could evaluate whether there are
lessons from Scotland that could strengthen its own procedures
on dealing with delegated legislation. (See Appendix 1)
6. ROLE OF
No SIs can be amended by either House. This
means that the Lords would have to reject the SI entirely if they
identified a problem, a path that they are usually unwilling to
take. This is despite the fact that the power to reject delegated
legislation is one of the few unilateral powers possessed by the
Lords (on which they cannot be overruled by the Commons).
With the final shape of reform of the House
of Lords still to be determined, it is important that the powers
and functions of the Upper House in considering delegated legislation
are part of this process. The main theme of any settlement should
be to enshrine ways that enhances the mechanisms available to
scrutinise delegated legislation. The establishment by the House
of Lords of the Merits Committee to identify SIs "which it
considers to be of sufficient political importance
debate" has been widely welcomed, including by the Hansard
Society, and shows that the Lords has made more progress than
the Commons in this area and that this position should be safeguarded
as Lords reform is completed.
The current parliamentary procedures for scrutinising
delegated legislation are not working effectively. A wide range
of bodies has reported on this subject in the last ten years and
all have proposed substantial reforms. While Making The Law
acknowledged that the increasing use of delegated legislation
over recent decades was inevitable, and indeed necessary, given
the complexity of modern Government and the constraints on parliamentary
time, it warned that the mechanisms for achieving effective parliamentary
scrutiny were absent and needed to be implemented.
The recommendations outlined in Making The
Law, and by others, particularly the Procedure Committee,
would, if adopted, improve a system that has attracted criticism
from across the political spectrum, both inside and outside Parliament.
Given the widespread nature of the criticisms of the system, and
the range of proposals for reform put forward, the Hansard Society
welcomes the Merits Committee inquiry and hopes that it provides
further weight to the calls for reform.
12 December 2005
11 The Report of the Hansard Society Commission on
the Legislative Process (1992), Making The Law, chaired
by Rt Hon Lord Rippon of Hexham. Back
See Procedure Committee, First Report (1999-2000) Delegated
Legislation HC 48 and Tyrie, Andrew MP (2000) Mr Blair's
Poodle, An Agenda for Reviving the House of Commons, Centre
for Policy Studies. Back
Blackburn, R and Kennon, A (2003) Griffith & Ryle on Parliament:
Functions, Practice and Procedures, London, Sweet and Maxwell. Back
Procedure Committee (1995-96) Delegated Legislation, HC
152, Procedure Committee (1999-2000) Delegated Legislation,
HC 48. Back
Strengthening Parliament, The Report of the Conservative
Party Commission to Strengthen Parliament, chaired by Professor
the Lord Norton of Louth, (2000). Back