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Number of Corrections to Statutory Instruments in 2014 - Secondary Legislation Scrutiny Committee Contents


Twentieth Report


Number of Corrections to Statutory Instruments in 2014

Introduction

1.  Since the Secondary Legislation Scrutiny Committee (SLSC) was established in 2003 (originally known as the Merits of Statutory Instruments Committee), we have kept a watchful eye on the quality of the statutory instruments (SIs) laid before Parliament. The Committee is particularly well placed to detect changes in quality because all instruments subject to a parliamentary procedure fall within the scope of its scrutiny.

2.  One of the subjects which we have considered in our end of session reports has been the number of correcting instruments laid during the period covered by the report. We have monitored this figure for two principal reasons: first, because of the waste of resources, for both the Departments and the SLSC, in having to consider an instrument twice (the original and the correction); and, secondly, because it seemed to us that there was a correlation between the degree of care that Departments were taking in ensuring that the instrument was correct and how carefully the policy, and its implementation, had been thought through.

3.  Table 1 below summarises the data for sessions 2003-04 to 2008-09. Because of the decline in the percentage error rate, the Committee stopped its regular count in 2009.

Table 1: Percentage error rates for negative instruments
% of negative instruments issued free of charge to correct an earlier SI
% of corrections when negative instruments mixing corrections and new material included
2003-04
5.3
-
2004-05
5.3
5.6
2005-06
3.64
4.85
2006-07
2.5
-
2007-08
3.5
-
2008-09
2.16
-

MORE RECENT DEVELOPMENTS

4.  Although, recently, the SLSC has focused primarily on problems relating to the quality of consultation and of Explanatory Memoranda (EMs), the number of corrections to instruments is again emerging as a cause for concern. According to our figures, for example, the number of correcting instruments as a percentage of the total laid by the Department for Business, Innovation and Skills (BIS) in 2014 was 9.26%, for the Home Office the percentage was 8% and for the Department for Communities and Local Government (DCLG) it was 7.69%. We find this level of corrections unacceptable. We commented about this issue in our most recent end of session report.[1] We also commented in the same report that a wider range of problems had started to creep in (for example, poor planning, with affirmative instruments being laid too close to their intended implementation date to allow for normal scrutiny). Our current concern about the rise in the number of correcting instruments is that the problem is not simply a matter of poor proof-reading but a more fundamental issue to do with the level of understanding within Departments of parliamentary procedure and parliamentary timetables. It is the Committee's wish to inspire Government Departments to stem and, if possible, reverse this trend that has prompted this report.

Current error levels

FIRST HALF OF 2014

5.  Despite drawing attention to the problem in our end of session report for 2013-14, the number of correcting instruments remained high at the start of the current session. Our analysis indicates that 45 correcting instruments were issued in the first six months of the calendar year 2014. This compared with a total of 43 such instruments in the whole of 2013 and 48 in 2012. In addition, 15% of the affirmative instruments considered by the Committee at that mid-year point were corrections.

6.  As a result, in July 2014, the Chairman wrote, on behalf of the SLSC, to Richard Heaton, First Parliamentary Counsel and Permanent Secretary at the Cabinet Office (see full correspondence in Appendix 1). In response, Mr Heaton said that he did not know the reason for the increase and asked for any information or analysis that the Committee could provide. To supplement our original analysis, which was largely based on our own records and information derived from the National Archives' Legislation.gov.uk website, the Chairman tabled a Question for Written Answer to 10 Government Departments asking each for a statement of the number and percentage of correcting instruments that they had laid in the period 1 January to 22 July.[2] The responses are summarised in Table 2 below.

Table 2: Responses to the Question for Written Answer
Department
Total No. of SIs
No. of Corrections
% of SIs Corrected
Mitigation
Business, Innovation and Skills
71 (Affirmative instruments not included)
7 [10]1
{9.9%}2
Legal advisers have this year reviewed and refreshed the SI checking processes and training given to lawyers.
Cabinet Office
Directed to website
Directed to website
Directed to website
Errors are fed back into the quality assurance process.
22
3 [4]
14%
Communities and Local Government
60
12 [7]
20%
Regularly reviews SI checking, training and guidance processes. The Treasury Solicitor's Department (TSols) will be looking at ways of improving the quality of statutory instrument drafting and the possibility of a specialist drafting "hub" for SIs.
Culture, Media and Sport
21
3 [2]
14.3%
Working with TSols on ways to strengthen drafting.
Energy and Climate Change
31
2 or 4

[3]
6.5% or 12.9%
The Department is committed to continuous improvement and seeks to learn from errors.
Environment, Food and Rural Affairs
33
2 [3]
6.1%
Reasons for corrections to SIs are investigated and appropriate action taken. Will be working with TSols on improvements.
Home Office
51
5 [6]
10%
Not all "errors" in an SI are drafting errors. Some instruments are withdrawn due to factual errors or changes in policy. Will be working with TSols on improvements.
Ministry of Justice
80
Estimate 3 [3]
3.75%
In addition to training and adopting rigorous checking processes, a new post is to be established to co-ordinate the sharing of best practice. Will be working with TSols on improvements.
Transport
58
4 +1 [4]
6.9%

+1 =

{8.6%}
Checking, mentoring, GLS training, cross-Whitehall drafting specialists act as a point of contact and a review into statutory instrument drafting arrangements. Will be working with TSols on improvements
Work and Pensions
70
3 [3]
{4.3%}
DWP and the TSols are taking steps to mitigate the need for correcting instruments through training, sharing best practice and a review into statutory instrument drafting arrangements.
Total
497
47 [45]
9.5% [9.1%]

1 [] Figures in square brackets are the product of the Committee's own analysis.

2 {} Figures in curly brackets not included in PQ response.

7.  Analysis of the responses in Table 2 shows that:

·  the average error rate, during the period 1 January to 22 July, across the 10 Departments, was 9.5%;

·  although there was wide variation between Departments, the Cabinet Office, the Home Office, BIS and DCLG showed correction levels well above the mean; and

·  there is no agreed definition of a correction - various Departments treated differently corrections responding to the Joint Committee on Statutory Instruments (JCSI), policy changes or planning errors (for example, where only the commencement date required changing).

OVERVIEW OF 2014 AS A WHOLE

8.  Having raised the issue mid-year, we then analysed Departments' performance to the end of the year to see whether there had been any improvement.

Table 3: Correction rates for 2014
Sis
Number laid
Number replaced free of charge
Percentage %
Affirmative
301
37
12.29%
Negative
750
28
3.73%
Total
1051
65
6.18%

9.  In the past, the Committee has considered an error rate in excess of 5% as unacceptable. In our assessment, the error rate for 2014 overall, and across all Departments, was 6.18%. When the performance of the 10 Departments considered in Table 2 are analysed separately, the outcome is 13.04% for affirmative and 4.26% for negative instruments, an average error rate of 6.81%. This is lower than the figure in the summer but still unacceptably high. As before, we found wide variation between Departments: the Cabinet Office, the Home Office, BIS and DCLG are still showing correction levels well above the mean, and have now been joined by the Department for Culture, Media and Sport.

10.  We are particularly alarmed by the high figure in relation to affirmative instruments. Given that the availability of pre-laying scrutiny of affirmative instruments (offered by lawyers supporting the JCSI) affords Departments the opportunity to correct most of the technical errors in the drafting of an instrument before it is formally laid, 13% corrections (1:8 instruments) seems very high. As is customary, we anticipate a spike of secondary legislation in the run up to the General Election in May. Regrettably this is also likely to contribute to high error rates for the remainder of the 2014-15 session.

Cabinet Office response: "the hub"

11.  On 21 October, the Chairman wrote to Mr Heaton and Jonathan Jones, the Treasury Solicitor, to share the evidence from the written questions with them. In their joint response on 3 November, they announced an initiative, to be launched in December 2014, which was intended to bring about significant improvements in the drafting of SIs (see Appendix 1). It involved the establishment of a "statutory instrument hub": a new team which would bring together lawyers currently working in a range of Departments under the leadership of an experienced drafter from the Office of the Parliamentary Counsel and a senior lawyer from Treasury Solicitors. A number of the responses to the Chairman's written questions also referred to this initiative.


12.  The purpose of the hub is, we are told, to improve the quality and efficiency of SI drafting by centralising and co-ordinating knowledge management, training, guidance and mentoring and by the dissemination of good practice. It will be a source of support for both lawyers and policy officials, improving understanding of processes and promoting consistency and coherence of approach. The Committee welcomes the establishment of a "statutory instrument hub". The Committee will, however, continue to monitor the level of correcting instruments and will await with interest to see how the hub improves the quality of SIs.

BOX 1
The sorts of errors that we anticipate the hub will assist in reducing include for example:

Draft Crime and Courts Act 2013 (Consequential Amendments) Order 2013

This Home Office instrument corrected the omission of immigration officers from the list of officials within the scope of the codes of practice issued under the Crime and Courts Act 2013.

Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014

This revised draft instrument was laid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 because the Ministry of Justice failed to take into account subsequent amendments made to that Act by the Crime and Courts Act 2013. The error was found after the original instrument had been approved in both Houses and so the revised instrument had to go through the parliamentary scrutiny process again.[3]

Types of Errors

13.  We have mentioned that a particular cause for concern is the increase in range of errors requiring correction. These are no longer simply proof-reading errors but procedural and policy errors that should have been addressed before the original instrument was laid. We set out below some illustrative examples.

"TYPOS"

14.  A small percentage of corrections due to typographical errors or IT problems is inevitable. As we have said, the Committee has in the past taken the view that the error rate should be no higher than 5%. Table 2 above and our end of year figures in Table 3 show that a number of Departments are currently far in excess of that threshold. Even a minor spelling error can have a significant effect on the delivery of the policy. See Box 2:

BOX 2

Football Spectators (2014 World Cup Control Period) Order 2014 (SI 2014/144)

Football Spectators (2014 World Cup Control Period) (Amendment) Order 2014 (SI 2014/220)

SI 2014/144 prescribed the control period under the Football Spectators Act 1989 for the 2014 FIFA World Cup tournament in Brazil. During this period certain individuals with a record of football-related violence would not be allowed to travel abroad. The control period should have begun on 2 June 2014, ten days before the first match in the tournament finals, and end when the last match in the tournament finished or was cancelled. The second instrument, SI 2014/220, was laid in a hurry to amend the date in the first Order from 13 June to 13 July to match the policy intention.[4]

POOR PLANNING

15.  For some time SLSC guidance to Departments has included the advice from the Lords' business managers that for an affirmative instrument Departments "should allow around 6 sitting weeks for the passage of the instrument through all its Parliamentary stages". In 2014 a number of Departments acted against this advice and laid SIs too close to the intended implementation date. For example, on 27 March a suite of five controversial affirmative instruments were laid by BIS to amend the copyright system. Although both the Easter recess and the Queen's Speech were imminent, an implementation date of 1 June was printed on the face of the instrument - the period between the laying date and intended implementation date included only 15 sitting days.

BOX 3
Draft Maternity Allowance (Curtailment) Regulations 2014

This instrument comprised Regulations laid by BIS and by DWP.[5] The lead BIS Regulations were laid just before the summer recess, on 21 July, and were made on 18 November, broadly in line with the six-week period advised. The DWP Regulations, however, which were subject to the negative procedure, were laid on 20 November and intended to take effect on 1 December, thereby breaching by 10 days the normal 21-days allowed for parliamentary consideration before an instrument is brought into effect. In our report, we criticised both Departments for failing to coordinate properly so that implementation could be achieved without reducing the standard scrutiny period.

Draft Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014.

These Regulations were laid by the Home Office on 3 November with a request from the Home Secretary that they be considered by the Committee at its meeting the following day. The Regulations consisted of 90 pages of complex and sensitive legislation and the request was wholly unfeasible. A full and critical report was published following our meeting on 11 November.[6]

16.  Allowing sufficient time for scrutiny is important. The House set up the SLSC to assist it in its consideration of the myriad of SIs laid before Parliament. The service the House expects from the Committee is being impeded by the failure of Departments to take adequate care in the preparation and timetabling of instruments.

17.  Whilst we acknowledge that there are genuine emergencies that require scrutiny to be expedited, we urge Departments to timetable the generality of SIs realistically and in accordance with the recommended period. In particular they need to be aware that the six-week period advised for affirmatives relates to weeks when Parliament is actually sitting and that they should therefore make allowances for parliamentary recesses. Departments also need to consider the wisdom of putting a specific date on the face of an affirmative instrument unless that date allows adequate time for all the delays that might legitimately occur as Members raise questions about the instrument.

INTERNAL CLEARANCE PROCEDURES

18.  A common reason given by Departments for failing to comply with the standard scrutiny period is delay caused by the Regulatory Policy Committee (RPC). The RPC was set up in 2009 to assess the quality of evidence and analysis supporting regulatory changes affecting businesses, charities and voluntary organisations, in particular the quality of the impact assessment. Although the system has been in place for a number of years, it appears that Departments continue to fail to allow sufficient time to deal with questions that the RPC might reasonably ask about their evidence or methodology.

BOX 4
Control of Explosives Precursors etc. Regulations (Northern Ireland) 2014 (SR 2014/224)

As a result of delays in RPC clearance, this instrument had to be brought into effect before it was laid before Parliament. The EM accompanying the instrument stated that if the Northern Ireland Office had not acted in that way, no retailer would have been able to sell any product containing the chemical substances listed in the instrument after 2 September 2014 (see correspondence in Appendix 2). Given this timetabling error, it was particularly unfortunate that there was another mistake in the processing of this instrument, namely that the description of the consultation process in the EM was wholly inaccurate. As the correspondence (in Appendix 2) shows, the Minister, Dr Andrew Murrison MP, has asked the Permanent Secretary to review the Department's clearance process.

POOR PROCESS AND "VERSION CONTROL"

19.  There are a number of steps which have to be followed, and followed in the right sequence, when making law. They are part of the system of checks and balance that ensure that legislation is not made lightly or without due care. Most unusually, we have this year seen corrections required due to a loss of "version control".

BOX 5
Consular Marriages and Marriages Under Foreign Law (No. 2) Order

The instrument made by the Privy Council as SI 2014/1110 had two additional articles that were not in the draft version previously cleared by Parliament. The new instrument set out the correct position and repealed the previous Order. The Foreign and Commonwealth Office stated that in its view Parliament had approved the full extent of the order made by the Privy Council, that the original Order was valid and that marriages, whether same or opposite sex marriages, conducted under it were valid. Confirmation of these issues however would be a matter for the courts. It is important to get the legislation right first time because it can cause significant problems for individuals.[7]

Rail Vehicle Accessibility (Victoria Line 09TS Vehicles)

A version of the Order was originally laid before Parliament on 9 December 2013. However, another version was laid on 16 May 2014 when it became apparent that the version of the Order laid in December differed in two minor respects from the Order actually signed by the Minister. The Order as signed by the Minister included provision for one of the exemptions to expire on 31 May 2015, the version of the Order laid in December and later published SI 2013/3031 did not include that provision. There were also other minor errors relating to the power under which the Order was laid. The new version was eventually made as SI 2013/3318 having passed through the scrutiny process a second time.[8]

20.  A Minister should be able to have confidence that an instrument presented for signature is legally correct and has followed the correct procedure. This sort of error is not insignificant: it may have very serious consequences where it brings into doubt whether actions taken under the version originally laid are legally valid. That two quite unconnected Departments should independently make this type of error indicates a weakness in the training or supervision of staff being allocated to this legislative role. It is critically important that Departments ensure that they have robust systems in place to prevent errors involving loss of "version control".

OMISSIONS

21.  One of the functions of the SLSC is to consider the policy objective of an SI and whether the instrument fulfils that objective. On a number of occasions recently we have drawn the attention of the House to the deteriorating quality of EMs accompanying instruments. Even if we do not formally draw an instrument to the attention of the House, the supplementary questions that we ask seek to fill the gaps identified and we often include in our reports clarifications of terms used, additional background or new data.[9]

22.  Usually when the Committee asks a Department for supplementary information it is easily available and provided promptly. It may be, for example, that the information, although available, had been omitted simply in the interests of brevity. Increasingly, however, we are finding that information is not included because it is not available within the timetable the Department has set itself for laying the instrument. In recent reports we have called attention to consultation analyses and impact assessments not being available at the time that the instrument is laid. More worryingly, we have also found cases where the instrument has been re-laid because the policy has not been fully worked out. See Box 6:

BOX 6
Care and Support (Independent Advocacy Support) No 2 Regulations 2014 (SI 2014/2889)

SI 2014/2889 corrected SI 2014/2824, an instrument laid only a week previously, because the Department of Health had second thoughts about the policy it proposed.

Draft Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014

Draft Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Provisions) Order 2014

These instruments set out the procedures to be followed by couples who wished to convert their civil partnership into a marriage. They replaced versions laid on 3 July 2014 which had been withdrawn following "reconsideration of elements of the procedure to address concerns raised by interested parties". Although there was extensive consultation in relation to the 2013 Act and general principles, it appeared to us that even a brief consultation on the proposed detail of the Regulations might have avoided the need to withdraw and re-lay these instruments.[10]

23.  We question whether these types of errors will be addressed by the proposal for a "secondary legislation hub". We therefore recommend that Departments review their internal processes so that, whether through public consultation or other means, they have systems in place to ensure that all aspects of the legislation that they put before the House are complete and robust.

Conclusion

24.  It appears to us that Departments are increasingly trying to prepare and lay instruments to a timetable which is shorter than is sensible. This may well account for the high level of correcting instruments. Whether it is because the reduction in the average consultation period for instruments[11] also decreases the overall timetable, or due to a loss of experienced staff within Departments with an understanding of the legislative process, or for some other reason, it is clear that there has been a deterioration in all aspects of the quality of secondary legislation laid before Parliament.

25.  The situation is not without hope. After some serious errors in the Department of Health (DH) in 2013, we wrote to the Secretary of State, the Rt Hon. Jeremy Hunt MP (see his response in Appendix 3). The action taken has significantly improved the Department's error rate: in 2014, DH made no corrections to affirmatives and corrected only three negative instruments out of 60 laid. Similarly the Ministry of Justice laid only six corrections out of 155 instruments laid (3.85%) and HM Treasury had an error rate of only 1.09% from 92 instruments laid. We would urge the Cabinet Office to examine what procedures are followed in those Departments with the lowest error rates so that best practice can be applied more widely.

26.  It might also be helpful if the Cabinet Office were to review, perhaps through the "statutory instrument hub", correcting instruments and categorise the types of error in order to establish a comparable and consistent basis for Departments to monitor their own performance.

27.  Whilst we have welcomed the establishment of a "statutory instrument hub", we shall continue to monitor the level of correcting instruments. It is with regret that we feel the need to do this since it is important that Departments take responsibility for the quality of their legislative output. As this report demonstrates, quality of drafting is only part of the problem. We are disappointed that individual Departments with a poor record on corrections have not done more to improve their performance. They need to engage in a process of continuous improvement. This should be done by addressing the apparent lack of awareness within their Departments about the legislative process and by introducing more robust checking systems with the close involvement of senior staff.


1   Work of the Committee in Session 2013-14, 42nd report, Session 2013-14, HL Paper 186. Back

2   The text of the question was "To ask Her Majesty's Government how many statutory instruments from the Department of x have been laid this calendar year; of those, what percentage corrected errors in a previous instrument (including drafts of affirmative instruments that had to be superseded by correcting drafts); and what steps that Department is taking to reduce the need for correcting instruments." [WPQs 1420-29 and 1702]. Back

3   14th Report, Session 2014-15, HL Paper 66. Back

4   31st Report, Session 2013-14, HL Paper 132. Back

5   Maternity Allowance (Curtailment) Regulations 2014 (SI 2014/3053) and Statutory Maternity Pay And Statutory Adoption Pay (Curtailment) Regulations 2014 (SI 2014/3054). See 18th Report, Session 2014-15, HL Paper 76. Back

6   13th Report, Session 2014-15, HL Paper 64. Back

7   The purpose of the Order is to revoke and re-enact (with some additional and consequential amendments) the Consular Marriages and Marriages under Foreign Law Order 2014 (S.I. 2014/1110), 11th Report, Session 2014-15, HL Paper 55. Back

8   Rail Vehicle Accessibility (Non-Interoperable Rail System)(London Underground Victoria Line 09ts Vehicles) Exemption Order 2013 (SI 2013/3318), 2nd Report, Session 2014-15, HL Paper 7. Back

9   See for example Draft Child Poverty Act 2010 (Persistent Poverty Target), 11th Report, Session 2014-15, HL Paper 55. Back

10   11th Report, Session 2014-15, HL Paper 55. Back

11   Latest Cabinet Office data shows the average consultation exercise now lasts 7.6 weeks, down from an average 10.2 weeks in 2012. Back


 
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