Chapter 4: Scrutiny of delegated legislation
Introduction
82.Once power has been delegated to ministers, Parliament may scrutinise the secondary legislation made under the power. This chapter explores the issues with scrutinising this legislation.
83.The main challenges for scrutinising delegated legislation relate to the volume and complexity of statutory instruments. As Figure 1 shows, a sustained increase in the number of SIs began in the early 1990s, averaging between 3,000 and 3,500 each calendar year to 2015. Of these, around 1,200 are subject to parliamentary scrutiny.104 The length of statutory instruments has also increased: from 6,550 pages of SIs in 1990 to 11,888 pages in 2009 (see Figure 2).105
84.Since 2015 the total number of SIs has declined: there were a little over 1,200 in 2016 and 2017, and (as of October 2018) just over 1,000 in 2018.106 This recent decline may in part be in anticipation of an increase in Brexit-related SIs, of which the Government estimated that 800–1,000 may be needed.107 Andrea Leadsom MP, Leader of the House of Commons, said that the number of SIs tended to vary over the years between “feast and famine”. She explained that the Government had “tried to get through as much of the urgent secondary legislation as possible to clear the decks for the Brexit secondary legislation. We are now managing the Brexit secondary legislation and we are confident that there will be a decent manageable flow of secondary legislation.”108 The Leader of the House of Lords, Baroness Evans of Bowes Park, added that Brexit would “undoubtedly see the number of business-as-usual SIs that are not essential being delayed.”109
Figure 1: Number of statutory instruments 1950 to 2016
Source: House of Commons Library, Acts and Statutory Instruments: the volume of UK legislation 1950 to 2016, CBP 7438, 21 April 2017
Figure 2: Pages of Acts and statutory instruments 1990 to 2009
Source: House of Commons Library, Acts and Statutory Instruments: the volume of UK legislation 1950 to 2016, CBP 7438, 21 April 2017
Scrutiny procedures
85.When Acts of Parliament delegate powers to ministers, they designate one of a number of parliamentary scrutiny procedures—or no procedure at all—for the SIs that will follow. The most common procedures are the negative procedure and the affirmative procedure.
86.For the negative procedure, an instrument is laid before both Houses, usually after being made. Either House may within 40 days pass a motion that the instrument be annulled. The instrument may come into force at any time after it is made and remains in force until it expires or is revoked or annulled. Negative instruments are debated only if a member specifically requests a debate and, in the House of Commons, if the Government provides time for it. Under the affirmative procedure, an instrument is usually laid before Parliament in draft and must be approved by both Houses before it may be made. Affirmative instruments are always able to be debated in each House.
87.There are variations on these two procedures. For example, some Acts make provision for draft negatives (instruments subject to a negative procedure that must be laid before Parliament in draft for a period before they may be made) or made affirmatives (instruments which are made, and may come into force, before being laid before Parliament, but which do not continue unless given affirmative approval within a certain time). Another variation is the affirmative procedure on first use model. Such powers, as we observed on the Space Industry Bill [HL] in the current session,110 attract the affirmative procedure on their first use only, with subsequent uses of those powers subject merely to annulment. There is no reason why a subsequent use of such a power might not involve the making of significant or wide-ranging amendments but result in negligible parliamentary scrutiny.
88.A variety of strengthened scrutiny procedures, known as enhanced affirmatives or super-affirmatives, are specified in individual Acts. The Hansard Society report, The Devil is in The Detail: Parliament and Delegated Legislation, which was referred to by a number of witnesses, identified 16 variations in scrutiny procedures.111 This included the 11 forms of strengthened procedure outlined by the DPRRC. As the DPRRC has reported, “[a]lthough these strengthened scrutiny procedures share a number of common features, there are marked differences between the Parliamentary procedures applicable to different powers or categories of powers.”112 The Law Society of Scotland noted that instruments subject to these enhanced procedures “can attract significant scrutiny which undermines the concept of speed and flexibility which delegated legislation is supposed to represent.”113 Baroness Fookes suggested that Parliament should “standardise these enhanced procedures”.114
89.The proliferation of scrutiny procedures for statutory instruments, many with only minor differences, adds unnecessary complexity. We recommend that the Government use an existing model of the enhanced affirmative procedure in any future bill, when strengthened scrutiny is required, rather than creating a new variation.
Scrutiny of secondary legislation
90.Several committees scrutinise secondary legislation when it is laid before Parliament. The Joint Committee on Statutory Instruments (JCSI), whose membership is drawn from both Houses, looks at the legal and technical correctness of SIs, including whether they are properly made on the basis of the delegated powers in the relevant primary legislation.115 The Secondary Legislation Scrutiny Committee (SLSC) of the House of Lords examines the policy impact of SIs. There is no equivalent committee in the Commons.
91.An additional committee process for sifting drafts of statutory instruments has recently been created by the European Union (Withdrawal) Act 2018. Statutory instruments which are proposed to be subject to the negative procedure under the Act are examined by the European Statutory Instruments Committee (ESIC) in the Commons and the SLSC in the Lords, either of which may recommend that the instrument be upgraded from the negative to the affirmative procedure.116 Such recommendations are not binding; however the Government is required to explain why the recommendation for an enhanced form of scrutiny is not being accepted.
92.Affirmative statutory instruments are debated in each House. In the Commons this normally takes place in Delegated Legislation Committees, which are assembled ad hoc for each SI. In the House of Lords, affirmative SIs are debated in Grand Committee or on the floor of the House.
93.For negative instruments, a member may ‘pray’ against the SI to trigger a debate. Only motions in the form ‘That an humble Address be presented to Her Majesty’, praying that the regulations in question ‘be annulled’ have an effect, but such motions are rare. In the House of Commons, when negative instruments are debated it is usually on a motion ‘to consider’ the SI, which, even if the Government is defeated, has no consequence on the SI coming into force and does not necessitate any further consideration or vote on the matter. ‘Prayers’ take the form of an Early Day Motion and normally rely on the Government to find allocate time to debate them. There is no guarantee that time will be granted or, if it is, that the debate will take place before the statutory instrument takes effect.117 In the House of Lords, a motion ‘to regret’ an SI may be tabled which, as with a motion ‘to consider’, has no effect on the SI becoming law. Time for a debate on the floor of the House of Lords will be found for such motions.
94.The overwhelming weight of evidence we received about the scrutiny of secondary legislation was critical. Liberty contrasted the extensive engagement of parliamentarians in the passage of primary legislation with an “almost summary” passage of SIs “in its want of deliberation and excess of speed.”118
95.Dr Ruth Fox argued that:
“the House of Commons procedures are utterly inadequate. In part, it is also about Members’ resources in terms of time to devote to it and the very technical nature of it. This House [of Lords] has responded over the years in reforming some aspects of its scrutiny procedures for delegated legislation; the Commons has not. Its procedures have remained largely as was. Delegated legislation committees are wholly inadequate.”119
96.The SLSC said the evidence it had taken on the subject suggested that:
“the scrutiny of secondary legislation is judged to be more thoroughly undertaken in the Lords than in the Commons. In making this observation, our intention is not to be critical. The relationship between the two Houses—with their different characteristics and functions, and with the multiple competing pressures on the time of Members of the House of Commons—should, as Lord Lisvane said, ‘be one of complementarity and not competition’. But acknowledging that this asymmetry exists is important … in the context of the debate about parliamentary scrutiny of secondary legislation.”120
97.The Bar Council suggested that parliamentary scrutiny of delegated legislation by the JCSI was effective “in ensuring that the Government acts within its powers, follows statutory instruments (SI) practice and procedures and is of adequate quality.”121 However, Garden Court Chambers said that the process of scrutinising SIs “does not always ensure that errors are picked up in time”, giving as an example a drafting error in the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2016 (SI 2016/965), which was identified by the JCSI only a fortnight after the regulations had come into force.122
98.The work of the Secondary Legislation Committee since 2003 in scrutinising the policy effect of statutory instruments has meant there is a systematic and rigorous process for scrutinising secondary legislation in the House of Lords. This Committee performs a vital role in scrutinising whether delegated powers are being used for matters of detail not policy. The House of Lords undertaking important scrutiny functions without duplicating the work of the Commons is a good example of the complementary roles of the two Houses.
99.The sifting procedure for instruments made under the European Union (Withdrawal) Act 2018 is still in its infancy and it is too early to assess its efficacy as part of this inquiry. We will return to this subject again at the appropriate time.
Amending delegated legislation
100.With a few exceptions,123 secondary legislation is unamendable. The only choice either House has is to accept or reject it. Some witnesses argued that, if secondary legislation was amendable, both Houses would be more engaged with scrutinising it. Lord Newby said that “unless you get to a point where secondary legislation can be amended in some form, the whole thing is a pretty fair charade.”124 Lord Hope of Craighead, Convenor of the Crossbench peers, agreed:
“I think without a power to amend delegated legislation much of these debates are really just empty shadowboxing. It is disappointing to spend time in the Grand Committee making points about a measure when you realise the Government are not going to do anything about what you are saying. That seems very unsatisfactory.”125
101.Professor Colin Reid, Professor of Law at the University of Dundee, said there were good reasons for not allowing delegated legislation to be amended by Parliament, although this could result in flawed legislation which would require amending measures almost immediately:
“It might be possible to allow for some adjustment to be made after parliamentary scrutiny but before the legislation is formally made (or comes into effect), perhaps limited to adjustments certified by the appropriate parliamentary authority as being exclusively to serve the purpose of correcting flaws identified during the scrutiny stage.”126
102.The SLSC noted that secondary legislation was intended to enable more efficient use of parliamentary time so that “more time will be available for the discussion of major matters of public concern”. It said:
“A general power to amend secondary legislation could, we believe, defeat that purpose. Arguably a preferable approach would be for Government to ensure that secondary legislation is used only for provision of ‘essentially subsidiary or procedural character’ and to avoid lengthy, composite instruments. If this were the case, then the likelihood of any demand to amend an instrument would, we believe, be significantly lessened.”127
103.David Lidington MP told us that he was not persuaded by the case for amending statutory instruments: “It would be a very big change in the way Parliament works. To make secondary legislation amendable starts to blur the distinction between the primary and secondary legislative processes as well.”128
104.Baroness Smith of Basildon, Shadow Leader of the Lords, concurred: “The danger with having amendments is that it would be very easy to rerun the arguments that we had on the primary legislation on the secondary legislation. The problem at the moment is that it is all or nothing. There is a veto or there is nothing at all.”129
105.The Law Society of Scotland suggested that Parliament delaying SIs
“would undermine the initial reason for delegated legislation. To counter this there should be a general presumption that draft delegated legislation should be consulted upon broadly so that problems in connection with the order can be identified at an early enough stage for Government Ministers to take account of the criticisms and if so advised change the direction and wording of the order.”130
106.There is no provision for amending statutory instruments and we are not proposing one. However, this means that Parliament’s only options when presented with an inappropriate or defective statutory instrument are to accept it or reject it. This places a greater onus on the Government to respond to the concerns raised by parliamentarians, and to withdraw and re-lay statutory instruments where appropriate.
Rejecting statutory instruments
107.Parliament has been reluctant to reject SIs. According to the Hansard Society, just 16 SIs out of over 169,000 (0.01%) have been rejected since 1950—11 by the House of Commons and five by the House of Lords.131
108.The issue of whether Parliament—and particularly the House of Lords—should reject a statutory instrument was brought into sharp relief by the draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015. These regulations were intended by the Government to assist in delivering a manifesto commitment to reduce the welfare budget. There were debates about whether the statutory instrument constituted a financial measure, over which the House of Commons should have sole cognisance, and whether, given it intended to implement a manifesto commitment, the House of Lords should accede to it on the basis of the Salisbury–Addison convention that the Lords does not block primary legislation promised in election manifestos. Ultimately the House of Lords voted for an unusual motion to delay consideration of the SI until an independent analysis of the proposals could be conducted and a scheme drawn up for full transitional relief for those affected. The vote led to the Government delaying and then ultimately abandoning the measure.
109.The vote prompted the Government to commission a review into secondary legislation and the primacy of the House of Commons, led by former Leader of the House of Lords, Lord Strathclyde. This review was published on 17 December 2015, with a recommendation to develop a new statutory procedure that would allow the Commons a second vote on a statutory instrument, insisting on its primacy, subsequent to the Lords asking the Government to reconsider.132 In our report on the review we concluded that, while there were “serious problems with the current system of delegated legislation that must be addressed”, the Government had directed the review to examine the wrong questions by framing it as a consideration of the balance of power between the two Houses of Parliament.133 We said that while the review might be treated as a starting point for further consideration of the use and scrutiny of delegated legislation, it did not “provide sufficient basis for changing how Parliament holds the Executive to account.”134 The Secondary Legislation Scrutiny Committee concluded that there were “strong arguments in favour of re-affirming … the current convention … that the Lords should retain its power to reject an instrument but that it should be used only in exceptional circumstances.”135
110.If the Government uses delegated powers to propose secondary legislation which makes technical provision within the boundaries of the policy and has previously been agreed in primary legislation, Parliament is unlikely to wish to block statutory instruments. However, we are concerned, and this report has shown, that these boundaries are not always respected and that ministers may seek to use statutory instruments to give effect to significant policy decisions. Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable.
111.The Government already has a mechanism to remedy faults in statutory instruments which are identified by parliamentary scrutiny. SIs subject to the affirmative procedure are made only when signed by a minister after parliamentary debates have taken place; until they are signed, they can be withdrawn, revised and re-laid. SIs subject to the negative procedure come into force on the date specified on the instrument, but the Government already has the power to lay a second SI to revoke and replace the first.
112.However, for these processes to work, the Government must take account of the scrutiny of statutory instruments and respond promptly to remedy any deficiencies. Where it does not do so, in exceptional circumstances Parliament may use its existing powers to block such instruments. The Government should recognise that parliamentary defeat on a statutory instrument need not be considered momentous nor fatal. It does not prevent the Government subsequently tabling a revised SI having listened to and acted on parliamentarians’ concerns.
113.If the Government’s current approach to delegated legislation persists, or the situation deteriorates further, the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained.
105 2009 is the last year for which figures in this data series are available due to changes in the way statutory instruments were published.
106 UK Statutory Instruments, Legislation.gov.uk: https://www.legislation.gov.uk/uksi
107 Constitution Committee, European Union (Withdrawal) Bill (9th Report, Session 2017–19, HL Paper 69), paras 229–230
110 Constitution Committee, Space Industry Bill [HL] (2nd Report, Session 2017–19, HL Paper 18)
111 Ruth Fox and Joel Blackwell, The Devil is in The Detail: Parliament and Delegated Legislation (London: Hansard Society, 2014)
112 Delegated Powers and Regulatory Reform Committee, Strengthened Statutory Procedures for the Scrutiny of Delegated Powers (3rd Report, Session 2012–13, HL Paper 19)
115 The Commons Select Committee on Statutory Instruments (SCSI) fulfils the same role for statutory instruments that deal with financial matters, which are only laid before and subject to proceedings in the House of Commons.
116 By mid-November, SLSC had considered 61 proposed negative instruments and recommended that six of these be upgraded to the affirmative procedure. The Government had accepted four of these recommendations, confirming that the instrument concerned would be laid as subject to the affirmative procedure, and had yet to respond to the other two. No recommendations had been rejected. ESIC had considered 68 proposed negative instruments and recommended that 11 of these be upgraded to the affirmative procedure. The Government had accepted six of these recommendations, and had yet to respond to the other five. No recommendations had been rejected. The upgrading recommendations from SLSC related mostly, though not exclusively, to the same instruments as were recommended for upgrading by ESIC.
123 An example of an exception is the Order in Council procedure in the Census Act 1920. The House of Commons considered an amendment to one such Order in 1975. HC Deb 25 March 1975 vol 889 cols 407–43
131 Ruth Fox and Joel Blackwell, The Devil is in The Detail: Parliament and Delegated Legislation (London: Hansard Society, 2014). In addition, see para 108.
132 Cabinet Office, Strathclyde Review: Secondary legislation and the primacy of the House of Commons, Cm 9177, December 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486790/53088_Cm_9177_Web_Accessible.pdf [accessed 19 November 2018]
133 Constitution Committee, Delegated Legislation and Parliament: A response to the Strathclyde Review (9th Report, Session 2015–16, HL Paper 116), summary
134 Ibid., para 86
135 Secondary Legislation Scrutiny Committee, Response to the Strathclyde Review: Effective parliamentary scrutiny of secondary legislation (32nd Report, Session 2015–16, HL Paper 128)