Select Committee on Merits of Statutory Instruments Written Evidence


Memorandum by the Hansard Society

1.  INTRODUCTION

  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.[11] 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 AND FUNCTIONS OF DELEGATED LEGISLATION

  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.[12] 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 CRITICISMS

  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.[13]

  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 or redrafted.

    —  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.

4.  PROPOSALS FOR REFORM

  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 scrutiny.

  A range of reform proposals were also put forward by the House of Commons Procedure Committee, which produced two reports, in 1996 and 2000.[14]

5.  ALTERNATIVE MODELS OF SCRUTINY

  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.[15]

    —  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."[16]

    —  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 THE HOUSE OF LORDS

  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…to merit 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.   

7.  CONCLUSION

  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

12   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

13   Blackburn, R and Kennon, A (2003) Griffith & Ryle on Parliament: Functions, Practice and Procedures, London, Sweet and Maxwell. Back

14   Procedure Committee (1995-96) Delegated Legislation, HC 152, Procedure Committee (1999-2000) Delegated Legislation, HC 48. Back

15   Strengthening Parliament, The Report of the Conservative Party Commission to Strengthen Parliament, chaired by Professor the Lord Norton of Louth, (2000). Back

16   IbidBack


 
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