Chapter 4: Delegated Legislation Committees
Joint Committee on Statutory Instruments
76.The Joint Committee on Statutory Instruments (JCSI) is one of the oldest scrutiny committees, having been initially appointed in session 1972–73. It is responsible for scrutinising the legal drafting of all statutory instruments made in exercise of powers granted by an Act of Parliament including those statutory instruments that are laid before Parliament but are not subject to procedure. In the last session the JCSI considered 757 statutory instruments, of which 166 required affirmative resolution, 462 negative resolution and 129 were laid but required no resolution. Commons-only statutory instruments are considered separately by the Select Committee on Statutory Instruments (SCSI), which is comprised of the Commons members of the Joint Committee. Commons-only instruments generally represent (an additional) 10% of the number that the JCSI consider and, in line with the average, this session the SCSI considered 71 instruments.
77.Standing Order 73 sets out the grounds on which the JCSI may draw a statutory instrument to the special attention of both Houses. In any year the majority of those reported are on the ground “that its drafting appears to be defective”87 which can mean anything from incorrect numbering to definitions not set out appropriately. The rest are on more serious grounds such as doubtful “whether it is intra vires”88 or an “unexpected use of the power”89 in the parent Act. In the 2016–17 session 80 statutory instruments were drawn to the attention of Parliament (10.5% of the total examined) and of those 12 (15% of those reported) were on the most serious grounds of doubtful vires or unexpected use of the power. As much of the JCSI’s work is very technical it rarely attracts external notice but its recent report on the draft Non-Contentious Probate Fees Order90 which queried whether the charging of a sliding scale of fees of up to £20,000 for registering probate on a will constituted a fee for a specific service, as envisaged by the Act, or a tax on the estate, was widely reported in the newspapers.
Delegated Legislation and the House of Lords
78.Less than four per cent of the time on the floor of the House is spent debating delegated legislation. Over the past 25 years, however, the House of Lords has developed a reputation for its detailed scrutiny of both the delegated powers contained in bills, and the merits of Statutory Instruments, through its two specialist committees. The activity and impact of those committees is examined in the following paragraphs.
Delegated Powers and Regulatory Reform Committee
79.The Delegated Powers and Regulatory Reform Committee (DPRRC) examines all bills introduced into the Lords and reports on whether the provisions of any bill inappropriately delegate legislative power or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny.
80.In session 2016–17, the Committee published 28 reports on 37 bills (21 Government and 16 Private Members’ Bills) and seven sets of amendments. The Government accepted recommendations by the Committee in relation to a number of bills. These included: the Bus Services Bill, the Children and Social Work Bill, the Investigatory Powers Bill, the Policing and Crime Bill, the Wales Bill, the Digital Economy Bill, the Neighbourhood Planning Bill and the Higher Education and Research Bill. On occasion, the timetable is extremely tight, where, for example, a bill is fast-tracked. This was the case with the Northern Ireland (Ministerial Appointments and Regional Rates) Bill which the Committee considered and reported on the same day as consideration by the House.
81.The DPRRC is always vigilant about the use of Henry VIII powers. One area of particular concern over a number of sessions has been the use of consequential provision and powers to repeal, amend or “otherwise modify”91 primary legislation where the power to amend is subject to the affirmative procedure but the power to otherwise modify to the negative procedure. The DPRRC has recommended on several occasions that the affirmative procedure should apply across the board. The Government have resisted this point and, as a result, in March 2017, the Committee took evidence from First and Second Parliamentary Counsel in order to explore the matter further. That evidence remains under consideration by the Committee.
82.At the end of session 2015–16, the DPRRC published a report on the Strathclyde Review, complementing the work of the Secondary Legislation Scrutiny Committee and the Constitution Committee. The three committees continued their collaboration during session 2016–17. Following publication of the Government’s response to the Strathclyde Review, the Chairmen of the three committees signed a joint letter to the Leader of the House of Commons replying to the Government’s response, deprecating its “minatory tone”. 92
83.The Chairman of the DPRRC gave evidence to the Constitution Committee’s inquiry into the legislative process which was cited in that Committee’s report on the Great Repeal Bill and delegated powers. That evidence, relating to sunsetting the delegation of powers in the Great Repeal Bill, was later taken up in the Government’s White Paper, Legislating for the United Kingdom’s withdrawal from the European Union. The DPRRC also made two submissions to the Commons Procedure Committee inquiry into the delegated powers in the Great Repeal Bill and–looking forward to the next session–has indicated that, given the exceptional nature of the Bill, it may wish to make its first assessment of the Bill when it is still in the Commons.
84.It has long been the practice of the Committee to make submissions to joint pre-legislative scrutiny committees. Towards the end of session 2016–17, the Committee extended that to a Commons-only pre-legislative scrutiny committee. Under a very tight deadline, the Committee made a submission to the Commons Science and Technology Committee on the draft Spaceflight Bill. The Committee’s submission was mentioned on numerous occasions in the report on the draft Bill and the Science and Technology Committee said: “We are grateful to the DPRR Committee for agreeing to examine the draft delegated powers memorandum accompanying the Bill and for responding so promptly”. 93
Secondary Legislation Scrutiny Committee
85.In 2016–17, the Secondary Legislation Scrutiny Committee considered 659 statutory instruments, and brought 49 of these to the special attention of the House. The Committee held 30 meetings and published 33 reports. Eight of the 49 instruments reported related to the Government’s programme to devolve powers and budgets to cities and local government; the Committee commented critically on the handling of consultation in certain cases, and also on the explanation of consultation outcomes given by the Government. Members of the House drew extensively on these reports in the debates on the instruments which ensued.
86.The Committee followed up long-standing concerns with the Government’s preparation and presentation of secondary legislation in a number of ways:
- in July 2016 it took oral evidence from three Permanent Secretaries about these issues, which led the Government to develop a programme to improve civil servants’ skills in providing adequate supporting information in the Explanatory Memoranda laid alongside statutory instruments;
- in February 2017 it received from the Rt Hon Ben Gummer, MP, Cabinet Office Minister, the first in a series of annual reports on Government consultation which had been promised in response to the Committee’s consideration of this issue in previous Sessions.
87.Alongside its ongoing work of scrutiny, the Committee published several issue-based reports:
- in December 2016, the Government published their response to the Strathclyde Review; in the same month, jointly with the Constitution Committee and the Delegated Powers and Regulatory Reform Committee, the Committee published a critical reply to that Government response, regretting its “more minatory tone”94 compared with the Government’s statement to the House on 17 November 2017;
- in February 2017, the Committee published its response to the five-year evaluation of the Public Bodies Act 2011, commenting in particular that it saw the Government’s handling of the 2011 Act as showing a “cavalier approach”95 to the use of Parliament’s time;
- in early 2017, the Committee gave written evidence to the Constitution Committee’s inquiry into The ‘Great Repeal Bill’ and delegated powers, and also to the inquiry by the House of Commons Procedure Committee into the same topic, publishing its evidence to the latter in a Special Report.
87 House of Lords, The Standing Orders of the House of Lords Relating to Public Business, Standing Order 73 (18 May 2016), p 6: http://www.parliament.uk/documents/publications-records/House-of-Lords-Publications/Rules-guides-for-business/Standing-order-public-business/Standing-Orders-Public.pdf [accessed 3 July 2017]
88 Ibid.
89 Ibid.
90 Joint Committee on Statutory Instruments, Twenty-sixth Report of Session 2016–17 (Twenty-sixth Report, Session 2016–17, HL Paper 152)
91 The phrase “otherwise modify” appears frequently in Acts of Parliament. For example, section 42 (2b) of the Enterprise Act 2016 makes the following provision to amend, repeal, revoke or otherwise modify any provision made by or under an enactment (including an enactment passed or made in the same Session as this Act).
92 Letter from the Chair of the Constitution Committee, Delegated Powers and Regulatory Reform Committee and Secondary Legislation Scrutiny Committee on the Strathclyde Review , 19 December 2016: http://www.parliament.uk/documents/lords-committees/constitution/Correswithministers/Final%20Joint%20Strathclyde%20response%20letter%20151216.pdf
93 Science and Technology Committee, The Draft Spaceflight Bill (Fourteenth Report, Session 2016–17, HC 1070)
94 Secondary Legislation Scrutiny Committee, Joint response to the Government Response to the Strathclyde Review and related Select Committee Reports by the Constitution Committee, the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee (19th Report, Session 2016–17, HL Paper 90)
95 Secondary Legislation Scrutiny Committee, Post-Legislative Assessment of the Public Bodies Act 2011 (February 2017): http://www.parliament.uk/documents/lords-committees/Secondary-Legislation-Scrutiny-Committee/post-legislative-assessment-of-the-public-bodies-act-2011.pdf