Chapter 5: delegated legislation which
129. The overwhelming majority of the evidence
that the Committee received during its inquiry into fast-track
legislation related to primary legislation. But, whereas each
year a few dozen pieces of primary legislation are passed, several
thousand pieces of delegated or secondary legislation are scrutinised
130. This Chapter considers issues surrounding
delegated legislation which is fast-tracked through its parliamentary
scrutiny. We also examine two pieces of primary legislationthe
Civil Contingencies Act 2004 and the Health and Social Care Act
2008which provide the government with emergency order-making
powers. These powerswhich have not been used to datewould
be subject to fast-tracked parliamentary scrutiny if they were.
Statutory instrument procedure
131. In his written evidence to us, the Clerk
of the Parliaments most helpfully set out a great deal of technical
information about the different kinds of parliamentary control
over statutory instruments, and the role of the scrutiny committees.
We have summarised the main points of that below. The full detail
can be found in the Clerk of the Parliaments' written evidence
132. The main categories of parliamentary control
over statutory instruments are:
· no formal procedure (instrument laid before
Parliament but not subject to negative or affirmative procedure);
· negative procedure;
· 'draft' affirmative procedure;
· 'made' affirmative procedure.
133. The Joint Committee on Statutory Instruments
(JCSI) provides technical and legal scrutiny of all statutory
instruments within its terms of reference. The House of Lords
Merits of Statutory Instruments Committee considers the merits
of instruments within its terms of reference.
Made affirmative procedure
134. The made affirmative procedure is often
used in Acts where the intention is to allow significant powers
to be exercised quickly. It is a kind of "fast-track"
secondary legislation. In most cases the parent Act specifies
which form of procedure should be applied to instruments made
under it. In some cases however the Act may provide for either
the draft affirmative or the made affirmative procedure to be
used. If the made affirmative procedure is used then the instrument
is effective immediately.
135. Instruments laid as made instruments almost
inevitably place a serious time pressure on those drafting them.
The JCSI's 8th report of this session
drew the special attention of both Houses to three statutory instruments
which had been laid as made affirmatives. In its memorandum to
the JCSI, Her Majesty's Treasury explained that the process "had
inevitably placed serious time pressure" on them and that
"revisions were being made to the terms of the instruments
down to the moment that they were made".
Draft affirmative procedure
136. Once a draft affirmative instrument has
been laid before Parliament, the JCSI will normally consider it
within seven to 20 days. In the House of Lords, the terms of Standing
Order (SO) 73 provide that an affirmative instrument may not be
approved by the House until the JCSI has reported on it.
137. There are two ways by which the Government
may seek to expedite these procedures. The first is for a Minister
to write to the JCSI and request that an instrument be considered
more quickly than the standard timeframe would allow. The Clerk
of the Parliaments in his written evidence explained that sometimes
this request was owing to genuine urgency and at other times was
seemingly more for administrative convenience. It is for the Committee
to decide whether to accede to such requests. The Clerk of the
Parliaments pointed out that taking statutory instruments at short
notice inevitably means that other work is disrupted (p 164).
138. The second way that a Government can seek
to fast-track proceedings on a draft affirmative instrument is
to move a motion that SO73 be dispensed with, allowing an approval
motion to be moved very shortly after the instrument has been
laid, but denying the House the measure of assurance offered by
the JCSI. We see it as a measure of the high regard in which the
JCSI is held that this has happened on only five occasions since
1990 (Clerk of the Parliaments, p 165).
139. Whilst accepting that in a very limited
number of circumstances there may be grounds for seeking to fast-track
parliamentary procedure of draft affirmative instruments, we take
this opportunity to remind the Government of the importance of
140. It is a convention that negative instruments
should not come into force less than 21 days after laying before
Parliament. During this time, a Member of the House may table
a prayer to annul the negative instrument. Breaches of the 21
day convention, which are monitored by the JCSI and the House
of Lords Merits of Statutory Instruments Committee, may be understandable,
but in the interests of clarity and good governance should be
Secondary legislation during
141. In Chapter 3 we considered the impact of
parliamentary recesses on the passage of primary legislation,
particularly fast-track primary legislation. The Clerk of the
Parliaments' written evidence explained that draft affirmative
instruments cannot be laid during a parliamentary recess. Negative
instruments and made affirmative instruments may be laid during
a recess but the periods specified in relation to negative and
made affirmative instruments (i.e. the 40 days for which a negative
instrument must lie before both Houses, and the specified period
within which a made affirmative instrument must be approved) are
suspended. The effect of this is that "if a negative or made
affirmative statutory instrument is laid at the start of a recess
it can come into force and remain in force for a substantial period
of time before it can be considered by either House" (p 166).
Case studies of emergency order
142. We now turn to consider the case studies
of the Civil Contingencies Act 2004 and the Health and Social
Care Act 2008, raised by witnesses, which provide the government
with emergency order-making powers.
143. Part II of the Civil Contingencies Act 2004
confers on the Government the power to make temporary emergency
regulations in the event of a large-scale national emergency.
Such regulations are limited in duration to 21 days, unless Parliament
votes to extend this period before it expires. Professor Walker
told us that the "regulation-making powers [in Part II of
the CCA 2004] are of awesome scope" (p 181). Mr Durno
said that the Civil Contingencies Act has extraordinarily broad-ranging
powers for ministers to make regulations (Q 275).
144. The order-making powers under Part II of
this Act have not so far been used. Mr Durno told us that "it
is very reassuring that ministers have been wary of having very
fast recourse to the Civil Contingencies Act. They are dealing
with it sensibly
they are only going to use it in serious
situations" (Q 283). Dr Metcalfe agreed with this (Q 158)
and Ms Sankey went further in explaining that she believed "there
is a political imperative
for the Act not to be used as
the Government is not keen on making a statement on the issue
as to whether the country is facing a national emergency or bringing
in powers under the Act" (Q 158).
145. The emergency powers allowed for under the
Civil Contingencies Act 2004 were judged to be acceptable by some
of our witnesses. Professor Dickson told us that it "provides
for an approach to emergency powers which is consistent with the
rule of law" and that its safeguards were appropriate (Q 242).
Professor Miers agreed with this (Q 321). Professor Walker
did not share this view and doubted whether the limits of the
order-making powers were as "transparent and robust"
as the Government claimed (p 181). Dr Metcalfe told us that
he agreed with Professor Walker's "analysis of the defects
in the procedure, particularly relating to the level of proportionality,
the seniority of the minister involved, the objectivity of the
test required and the objectivity of the need to take emergency
steps" (Q 158).
146. Mr Bryant told us that the order-making
powers contained within the Civil Contingencies Act 2004 were
not a template for all other emergency legislation. He pointed
to the Health and Social Care Act 2008 which provides for a regime
for dealing with a public health crisis and contains different
order-making powers (Q 383). The Government submitted separate
written evidence about the powers contained within the 2008 Act
147. In their report on the Health and Social
Care Bill, the Joint Committee on Human Rights (JCHR) had criticised
these order-making powers: "We consider that, in the light
of the types of emergency which the Government considers these
regulations may be necessary to meet
the emergency procedure
in this Bill should be amended to reflect the provisions of the
Civil Contingencies Act 2004".
148. Seeming to agree with this point of view,
Mr Durno told us that the Civil Contingencies Act 2004 provided
a useful starting point and that it might be used as a reference
point for future pieces of legislation containing emergency powers
to provide a common approach (Q 271).
149. We did not receiveor seeksufficient
evidence on this point to be able to judge whether the order-making
powers in the Civil Contingencies Act 2004 are more or less appropriate
than the bespoke order-making powers contained within the Health
and Social Care Act 2008. We shall, during the course of our
bill scrutiny activities, pay close attention to future proposed
emergency order-making powers.
13 This is the most common procedure for statutory
instruments laid before Parliament. Back
Joint Committee on Statutory Instruments, Eighth Report of
Session 2008-09 (HL 53, HC 3-viii). Back
ibid., Appendix, para 2 (p 5). Back
Joint Committee on Human Rights, 12th Report (2007-08), Legislative
Scrutiny: 1) Health and Social Care Bill and 2) Child Maintenance
and Other Payments Bill: Government Response (HL 66, HC 379),
para 1.43. Back