Chapter 2: Background
5.Delegated, or secondary, legislation is the product of law-making powers delegated by Parliament to the Government, generally through provisions in primary legislation (the latter being the “parent Act” of the delegated legislation). These powers are usually exercised through statutory instruments. The rationale for delegating power in this manner is to avoid the need for the inclusion in primary legislation of very detailed provisions, or to allow for legislation to be adjusted to keep track of developments (for example periodic adjustments or technological changes) without the need for frequent amendments to primary legislation by Parliament.
The scale of delegated legislation
6.Delegated legislation has increased in recent decades both in the number of instruments passed and in the size of individual statutory instruments. Whilst there were rarely more than 2,500 statutory instruments laid in any calendar year before 1990, since 1992 there have generally been between 3,000 and 3,600 per year (see Figure 1 in the Appendix for more detail). Moreover, the total number of pages of statutory instruments laid has doubled compared with the years before 1990.3
7.In addition to the increase in both the size and number of statutory instruments compared with the situation before 1990, the nature of the instruments has also changed. Delegated powers in primary legislation have increasingly been drafted in broad and poorly-defined language that has permitted successive governments to use delegated legislation to address issues of policy and principle, rather than points of an administrative or technical nature. We discuss this issue further later in this report (paragraphs 37-44).
8.Not all delegated legislation is subject to parliamentary procedures, and these figures include both instruments that are not subject to parliamentary approval or annulment but are simply ‘made’ (passed into law) by the Minister, as well as statutory instruments passed by the National Assembly for Wales. Both the Scottish Parliament and Northern Ireland Assembly also consider and pass delegated legislation so the total number of statutory instruments passed into law across the United Kingdom is greater still.4
9.The number of statutory instruments laid before Parliament in each session since 1997 has been between 790 and 1,500—with the exception of the first session of each Parliament which saw over 1,700 being laid in each case.5 In total, over 23,000 instruments have been laid before Parliament since 1997.6 Put another way, between six and ten statutory instruments have been laid before the House of Commons each sitting day, increasing to between ten and thirteen in the shorter last session of each Parliament.
Parliamentary scrutiny of delegated legislation
10.Except in extremely rare cases, statutory instruments cannot be amended by either House.7 There are 16 variations of the procedures by which statutory instruments pass through Parliament, including 11 variations of rarely-used enhanced and super-affirmative procedures.8 The majority of statutory instruments, though, can either be approved or annulled, depending on whether they are subject to the affirmative or negative procedure
Negative procedure (and annulment): There are two versions of this procedure:
- The instrument is made (becomes law) but can be annulled if a motion to annul is passed within 40 days.
- More rarely, the instrument must be laid in draft, and can be made only if it is not disapproved within 40 days.
Affirmative procedure: There are three versions of this procedure:
- The instrument is laid in draft but cannot be made unless the draft is approved.
- The instrument is laid after making but cannot come into force unless and until it is approved.
- The instrument is laid after making and will come into effect immediately but cannot remain in force unless approved within a statutory period (usually 28 or 40 days).
11.Around three-quarters of instruments laid in each session are subject to the negative procedure, most of the remainder being subject to the affirmative procedure (with a small number subject to a super-affirmative procedure,9 or a separate enhanced procedure that applies to Legislative Reform Orders). In the last full session (2014–15), 979 instruments were subject to the negative procedure and 267 to the affirmative.10 Some instruments are subject to Commons-only procedures, but most need to be approved, or not annulled, by both Houses.
12.Parliamentary scrutiny of statutory instruments is assisted by a select committee, the Joint Committee on Statutory Instruments (JCSI), which assesses the content of statutory instruments for compliance with technical and legal rules and with proper process. It does not consider the policy merits of instruments. It may draw instruments to the attention of both Houses on a number of grounds as set out in its remit.11 The Commons members of the JCSI sit as the Select Committee on Statutory Instruments when considering Commons-only instruments. The JCSI also offers the Government “informal advance scrutiny” of draft instruments.12 The Joint Committee’s most common reason for bringing an instrument to Parliament’s attention is defective drafting, which accounted for 47 of the 94 grounds for reporting instruments in the 2014–15 Session.13 In addition, the Joint Committee on Human Rights scrutinises Remedial Orders (a form of delegated legislation that seeks to correct breaches of human rights identified either by domestic courts, or by the European Court of Human Rights) and may draw them to the attention of both Houses on the same grounds as the JCSI.14
Scrutiny by the House of Commons
13.In the House of Commons, most business on delegated legislation is conducted in meetings of Delegated Legislation Committees (DLCs), of which there were 215 in the 2014–15 Session.15 Motions to approve are generally taken without debate in the Chamber subsequently. DLCs are ad hoc committees with members appointed for each meeting; the members are appointed by the Committee of Selection and, while other MPs may attend and speak, only appointed members may vote on or make any motion.16 Their meetings last for up to 90 minutes (they may be longer if they relate exclusively to matters in Northern Ireland) and are on a motion ‘That the Committee has considered the instrument [or draft instrument]’, which cannot be amended. MPs generally spend between 10 and 20 hours each session debating motions relating to statutory instruments in the House of Commons Chamber.17 It is very rare for the House of Commons to reject a statutory instrument: this last happened in October 1979, apparently the result of some confusion on the Government benches.18 The last defeat of an instrument on a division in the Commons was in March 1979.19
Scrutiny by the House of Lords
14.In addition to the JCSI (as mentioned above in paragraph 12), the House of Lords is also advised by the Secondary Legislation Scrutiny Committee, which was established in 2003 to scrutinise the merits of statutory instruments (and which was until 2012 known as the Merits of Statutory Instruments Committee). From 2003 to the end of the 2014–15 Session, the Committee scrutinised 11,603 instruments and brought 718 of them to the special attention of the House in its reports.20 The six grounds on which statutory instruments can be brought to the attention of the House are set out in the Committee’s terms of reference,21 but in most cases they are reported for their political importance or public policy impact.22 The Delegated Powers and Regulatory Reform Committee meanwhile advises the House on the appropriateness of the delegation of legislative power proposed in primary legislation.
15.The House of Lords divides its consideration of delegated legislation between debates on the floor of the House and in Grand Committee, with formal approval subsequently sought in the House if a debate is held in the latter. In the 2014–15 Session, a total of 27 hours and 35 minutes was spent debating delegated legislation in the main chamber.23 Table 1 in the Appendix sets out the time spent on business relating to delegated legislation in more detail.
The Draft Tax Credits (Income Thresholds and Determination of Rates) (Amendments) Regulations 2015
16.As we noted in the introduction, the Government asked Lord Strathclyde to carry out his review Secondary legislation and the primacy of the House of Commons following a defeat in the House of Lords on the Draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 (the ‘Tax Credit Regulations’). The exact motion and amendments considered by the House are set out in the Strathclyde Review24 and we do not intend to reproduce them all here.
17.The controversy surrounding this defeat focused on three issues: whether or not the motion agreed by the House was ‘fatal’; the exact nature of the conventions and established practice governing the Lords’ powers over delegated legislation; and the extent to which financial privilege applies to delegated legislation. We lay the different arguments out here in brief for the information of the House.
Fatal and non-fatal motions in the House of Lords
18.As the vast majority of statutory instruments laid by the Government cannot be amended, the main options available to the House of Lords are to approve or reject them under the affirmative procedure, or to annul them under the negative procedure. The House can also express its views through a ‘non-fatal’ amendment to a motion to approve an instrument or through a regret motion on a negative instrument.
19.There is disagreement on whether the motion agreed by the House on 26 October 2015 on the Tax Credits Regulations was fatal. The Regulations had already been approved on division by the House of Commons.25 Although a Liberal Democrat amendment explicitly rejecting the Regulations was defeated, the House finally agreed to decline to consider the Regulations until specific actions were taken by Government. The final motion reads:
“That this House declines to consider the draft Regulations laid before the House on 7 September until the Government, (1) following consultation have reported to Parliament a scheme for full transitional protection for a minimum of three years for all low-income families and individuals currently receiving tax credits before 5 April 2016, such transitional protection to be renewable after three years with parliamentary approval, and (2) have laid a report before the House, detailing their response to the analysis of the draft Regulations by the Institute for Fiscal Studies, and considering possible mitigating action.”26
20.The Strathclyde Review notes that “The effect of the decisions made by the House of Lords on 26 October was to withhold the approval of the House of Lords to a Statutory Instrument”. Lord Strathclyde expanded upon this in a speech in the House of Lords on 13 January 2016:
“the two noble Baronesses in their Motions … had rather cleverly and innovatively found a frame of words that … were neither fatal nor non-fatal …
My view is that, in practice, whatever the technicalities, they proved fatal because they took the order hostage and would not pass it unless certain conditions were met.”27
21.On the other hand, Baroness Hollis of Heigham, the mover of one of the amendments on which the Government were defeated, stated in debate that:
“this is a delaying amendment. It is not fatal, as the Government know. … it calls for a scheme of transitional protection before the House further considers the SI.”28
22.Professor Meg Russell, Director of the Constitution Unit at University College London, told the Commons Public Administration and Constitutional Affairs Select Committee (PACAC) that the House had done nothing unprecedented in voting against the Regulations, except that “there was this rather clever phrasing of the motion, in effect to delay approval rather than to veto the instrument. Veto of the instrument would have been something that had been done before, such as was done in 2012 and 2007. This delay motion was new. So that is constitutionally innovative, but I do not think that, in itself, causes the problem.”29
Conventions and established practice in relation to delegated legislation
23.While the House of Lords has previously resolved “That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration”,30 it has rarely been the House’s practice to reject delegated legislation. In 2006, the Joint Committee on Conventions of the UK Parliament scrutinised various elements of relations between the two Houses. On delegated legislation, it concluded “that the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it may be appropriate for it to do so”. The report then set out a non-prescriptive list of ‘exceptional circumstances’.31 It noted that in the absence of any exceptional or special circumstances, “opposition parties should not use their numbers in the House of Lords to defeat an SI simply because they disagree with it.”32
24.There is no doubt that rejecting a statutory instrument is a significant act. The 2011 report of the Leader’s Group on Working Practices, chaired by Lord Goodlad, stated that “the use by Parliament of its statutory power either to annul or to decline to approve SIs is seen as a ‘nuclear option’, to be used rarely, or not at all.”33
25.The Strathclyde Review set out the difficulty faced by members of the House:
“The convention that the House of Lords should not, or should not regularly, reject SIs is longstanding but has been interpreted in different ways, has not been understood by all, and has never been accepted by some members of the House.”34
26.Some members argue that the defeat of the Tax Credits Regulations was covered by the ‘exceptional circumstances’ qualification set out in the Joint Committee’s description of the convention. Others suggest that since the motion was arguably not fatal the convention did not apply. What is clear is that conventions can only govern proceedings when there is a common understanding as to their meaning—and that is no longer the case, if it ever were. We are wary of describing the House’s pattern of behaviour in relation to statutory instruments as constituting a constitutional convention at all; it might better be described as long-established practice.
27.It is clear that motions to reject delegated legislation are still uncommon.35 The House has divided on delegated legislation over 150 times since 1950; slightly over half have been on fatal motions. These resulted in six statutory instruments being defeated (if one includes the Tax Credits Regulations), five of them since 1997.36 The Government has won over 90% of divisions on fatal motions since 1950; including 84% since 1997.37
28.It should be acknowledged, however, that the number of instruments subject to divisions on fatal motions in the current Session has been relatively high (see Figure 2 in the Appendix). There have been divisions on fatal motions on five instruments so far in this Session. The only sessions in which more instruments have been the subject of fatal motions were the 2006–07 Session, when six divisions took place and one instrument was not approved, and the long 1979–80 Session, when the Government faced and won nine divisions on fatal motions.38
29.The number of divisions and rejections of instruments should be considered in the context of the huge scale of delegated legislation. In the last ten full sessions (2004–05 to 2014–15), the House considered over 2,000 motions on delegated legislation, nearly 13,000 statutory instruments were laid before Parliament,39 and some 36,000 statutory instruments became law.40 In that same period, the House of Lords rejected two instruments.
Financial privilege
30.The final point of contention was over the extent to which the House of Commons’ financial privilege applies to delegated legislation. As John Penrose MP stated when announcing the Strathclyde Review: “By long-standing convention the House of Lords does not seek to challenge the primacy of the elected House on spending and taxation”.41 This primacy is based on a resolution of the House of Commons of 1671 which states “That in all aids given to the King by the Commons, the rate of tax ought not to be altered by the Lords”, and on a further resolution of 1678 which restates the “undoubted and sole right of the Commons” to deal with all bills of aids and supplies.42 It was confirmed in the 1911 Parliament Act in relation to primary financial legislation relating to taxing and spending.
31.The Strathclyde Review states that Commons financial privilege applies to delegated legislation: “There is nothing in the history or practice of the claims by the House of Commons to a special privilege in relation to taxation and spending and connected financial matters that would justify any argument that it should be regarded as irrelevant to statutory instruments.”43 Many members in the chamber supported his view in the debate on the Tax Credits Regulations. Former Lord Chancellor Lord Mackay of Clashfern, for example, stated:
“It is clear that these tax credit payments are made out of the supply raised by taxation and that the other place has decided that the Tax Credits Act 2002 should be amended in terms of the approved draft. I am clearly of the opinion that a failure on the part of this House to approve the draft of this instrument would be a breach of the fundamental privileges of the elected Chamber.”44
32.Others have disagreed. Dr Ruth Fox, Director of the Hansard Society, told the Secondary Legislation Scrutiny Committee that financial privilege does not apply to secondary legislation.45 Professor Russell told PACAC that the Review had offered no evidence for the assertion financial privilege applied to delegated legislation. Professor Russell concluded that: “there never has been any kind of a clear convention of financial privilege applying to secondary legislation. I have never been aware of a convention on financial privilege on statutory instruments. This is a new issue that has come to the agenda in this context.”46
33.It is worth noting that not all statutory instruments are laid before both Houses. A little over 10% of instruments laid before Parliament are subject to Commons-only procedures, either affirmative or negative, as set out in their parent Act.47 To this extent, a measure of financial privilege for the Commons already exists in the current arrangements. The controversy is over whether the legal requirement for other statutory instruments to be passed (or not annulled) by both Houses is restricted by a wider understanding of the Commons’ financial privilege.
3 In each of the last five years for which figures are available (2005–2009) there were between 10,800 and 13,000 pages of statutory instruments laid (this compares to between 2,800 and 5,000 pages of Public Acts of Parliament). By contrast there were generally between 4,500 and 6,000 pages of SIs laid in the years for which figures are available between 1965 and 1985. See House of Commons Library, Acts and Statutory Instruments: the volume of UK legislation 1950 to 2015, CBP-7438, Tables 1a, 1b and 3.
4 A total of 7,842 Scottish SIs came into law in 1999–2015 and over 3,800 Northern Irish statutory rules from the resumption of devolved rule in 2007 to 2015; House of Commons Library, Acts and Statutory Instruments: the volume of UK legislation 1950 to 2015, CBP-7438, Tables 1b and 2.
5 This is the figure for statutory instruments laid before the House of Commons, and includes a number of instruments that are only subject to proceedings in that House.
6 Hansard Society, Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation, 2014, Appendix H, available at http://www.hansardsociety.org.uk/research/delegatedlegislation; House of Commons, Sessional Returns 2014–15 (Session 2015–16, HC 1)
7 There are a very small number of exceptions where the parent Act specifically allows for amendment by Parliament (e.g. Census Act 1920 and, in relation to emergency regulations, Civil Contingencies Act 2004).
8 Hansard Society, Ruth Fox and Joel Blackwell, The Devil is in the Detail, p 5
9 The ‘super-affirmative’ procedure provides for additional scrutiny by each House, including a statutory 60-day consultation period (following which the Minister must have regard to any representations made by either House).
10 House of Commons, Sessional Returns 2014–15
11 Standing Orders of the House of Commons: Public Business (2016), Standing Order 151 (HC 2)
12 For example, see Joint Committee on Statutory Instruments, Considerations of SIs: http://www.parliament.uk/business/committees/committees-a-z/joint-select/statutory-instruments/prescrutiny/ [accessed 23 February 2016]
13 House of Commons, Sessional Returns 2014–15. Note that SIs can be reported for multiple grounds.
14 Standing Orders of the House of Commons, Public Business (2016), Standing Order 152B (HC 2)
15 House of Commons, Sessional Returns 2014–15
16 Standing Orders of the House of Commons, Public Business (2016), Standing Order 118 (HC 2)
17 House of Commons, Sessional Returns 2014–15; Hansard Society, Ruth Fox and Joel Blackwell, The Devil is in the Detail, Figure 5
18 See HC Deb, 24 October 1979, cols 561–88
19 See HC Deb, 22 March 1979, cols 1833–59
20 House of Lords, Secondary Legislation Scrutiny Committee, Historical note: http://www.parliament.uk/documents/lords-committees/Secondary-Legislation-Scrutiny-Committee/committee_history_for_website.pdf [accessed 23 February 2016]
21 House of Lords, Secondary Legislation Scrutiny Committee, Terms of Reference: http://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee/role/tofref [accessed 23 February 2016]
22 See Hansard Society, Ruth Fox and Joel Blackwell, The Devil is in the Detail, Appendix J
23 House of Lords, Statistics on Business and Membership (March 2014) p 4: http://www.parliament.uk/documents/publications-records/House-of-Lords-Publications/Records-activities-and-membership/Business-membership-statistics/HL-Sessional-Statistics-on-Business-and-Membership-2014–15.pdf [accessed 16 March 2016]
24 See Strathclyde Review, pp 13-14
25 HC Deb, 15 September 2015, cols 964–989
29 Oral evidence taken before the House of Commons Public Administration and Constitutional Affairs Committee, 19 January 2016 (Session 2015–16), Q 15
30 LJ (1993–94) 683
31 Joint Committee on Conventions, Conventions of the UK Parliament (Report, Session 2005–06, HL Paper 265, HC 1212), paras 227-229
34 Strathclyde Review, p 15
35 The Leader of the House of Commons acknowledged this in his evidence to the Secondary Legislation Scrutiny Committee, 2 February 2016, Q 2 and Q 4 (Rt Hon. Chris Grayling MP).
36 The other Government defeat being over the Southern Rhodesia (United Nations Sanctions) Order 1968.
37 These proportions exclude the division on a motion to decline to approve the Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 in February 2015, which was not a whipped division; the motion was defeated.
38 House of Lords Library, Divisions on Delegated Legislation in the House of Lords 1950–1999, Library Note, LLN 2000/01, January 2000; House of Lords Library, Delegated Legislation in the House of Lords since 2000, Library Note, LLN 2012/012, April 2012,
39 Hansard Society, Ruth Fox and Joel Blackwell, The Devil is in the Detail, Appendix H
40 See Figure 1 in the Appendix; this is the total number of instruments dated 2005–2015 inclusive.
41 Strathclyde Review, p 25
42 See Constitution Committee, Money Bills and Commons Financial Privilege (10th Report, Session 2010–12, HL Paper 97)
43 Strathclyde Review, p 21
45 Oral evidence taken before the Secondary Legislation Scrutiny Committee, 2 February 2016 (Session 2015–16), Q 12
46 Oral evidence taken before the House of Commons Public Administration and Constitutional Affairs Committee, 19 January 2016,(Session 2015–16), Q 15 and Q 18
47 Joel Blackwell of the Hansard Society estimated that 11% of SIs laid before Parliament in the current Session were subject to Commons-only procedures (Evidence to the Secondary Legislation Scrutiny Committee, 2 February 2016, Q 12 (Dr Ruth Fox)). The Chairman of the House of Commons Treasury Committee notes that 122 SIs were scrutinised by the Select Committee on Statutory Instruments in the 2014–15 Session (and were therefore subject to Commons-only procedures), compared with over 2,000 by the Joint Committee. House of Commons, Sessional Returns 2014–15.