Review of Investigative Select Committee activity in 2017–18 Contents

Chapter 4: Delegated Legislation Committees

Delegated Powers and Regulatory Reform Committee

85.From the beginning of Session 2017–19 to the end of April 2018, the Delegated Powers and Regulatory Reform Committee (DPRRC) met 14 times and published 24 reports. It considered 32 bills (23 Government bills and nine Private Members’ bills). In addition, the Committee reported on two Legislative Reform Orders and a Regulatory Reform Order.

86.Towards the end of the last Parliament, the Committee made a written submission to the House of Commons Science and Technology Committee inquiry on the draft Spaceflight Bill. This was the first time that the Committee had made a submission to a pre-legislative scrutiny inquiry conducted by a Commons committee only, rather than a joint committee of both Houses. When reporting on the resulting Space Industry Bill [HL] in July 2017, the DPRRC was able to welcome the fact that the Government had incorporated so many of its recommendations in the Bill, and more generally expressed its support for participating in pre-legislative scrutiny.56 During the current session, the Committee was invited to make a submission to the House of Commons Housing, Communities and Local Government Committee inquiry into the draft Tenant Fees Bill. That Committee published its report in March 2018, in which it cited the DPRRC’s memorandum on several occasions and endorsed a recommendation by the DPRRC.57

87.Inevitably, the European Union (Withdrawal) Bill (EUWB) has been a principal focus of the Committee’s work this session. So far,58 the Committee has published six reports on the EUWB and associated Government amendments. Exceptionally, the first of these was published whilst the Bill was still in the House of Commons.59 The Committee published a further report on the Bill after second reading in the House of Lords, in which it made recommendations and offered in an appendix some suggested amendments to give effect to the Committee’s recommendations.60 Some of these amendments were agreed by the House at Report Stage: for example, an amendment to change the appropriateness test in respect of regulation-making powers under the Bill to a test of necessity, and an amendment to introduce a sifting mechanism for proposed negative instruments laid under certain provisions of the Bill so that the recommendation to upgrade the instrument to an affirmative by a committee of either House would be binding on the Government. Other reports on the Bill set out the Committee’s response to Government amendments,61 reported the Government Response to the Committee’s report on the Bill,62 and included an exchange of correspondence with Ministers.63

88.In January 2018, the Committee reported on another Brexit-related bill, the Taxation (Cross-Border Trade) Bill. This was, again, exceptional because the Bill was still in the House of Commons at the time. It was also exceptional because it is a supply bill and cannot therefore be amended by the House of Lords and, for this reason, it has been the practice of the Committee not to report on supply bills. The House of Lords Companion to the Standing Orders states that the DPRRC considers all public bills except consolidation and supply bills.64 With regard to the Taxation (Cross-Border Trade) Bill, however, the Committee concluded that, given the significance of the Bill and the powers contained in it and that it would not be amendable in the House of Lords, it should draw its concerns to the attention of the House of Commons and the Government.65 Significant reference was made to the Committee’s report during committee stage debate on the Bill in the House of Commons.66

Joint Committee on Statutory Instruments

89.The Joint Committee on Statutory Instruments (JCSI) involves seven members from each House and seeks to ensure that the legal drafting of the Statutory Instruments (SIs) laid before Parliament is complete, appropriate and does not exceed the powers set out in the Act under which the instrument is made. Following the election there were extended discussions in the Commons over how committees should be constructed and this meant that the JCSI did not have its first meeting until 1 November 2017. The delay caused particular difficulties in this House as, under Standing Order 72, “No motion for a resolution of the House to approve an Affirmative Instrument shall be moved until … there has been laid before the House a report thereon by the Joint Committee on Statutory Instruments”. The delay led to a considerable backlog and the Standing Order was suspended twice to allow particularly urgent affirmative orders to be debated [on the second occasion the House of Lords made it clear that it had reached the limit of its tolerance on the matter].67

90.From the State Opening to 18 April 2018 the JCSI considered 112 Affirmative SIs and 486 negative SIs, a total of 598 instruments subject to procedure. The Committee also examines instruments that are simply laid, for example Commencement Orders. Over the same period the JCSI issued 19 Reports drawing 61 SIs to the special attention of the House.

Secondary Legislation Scrutiny Committee

91.During the period from the beginning of Session 2017–19 to the end of April 2018, the Secondary Legislation Scrutiny Committee (SLSC) met 26 times and published 26 reports. It considered 663 instruments, of which 132 were affirmative and 531 negative instruments. It drew to the special attention of the House 24 affirmative and 27 negative instruments, an overall reporting rate of 7.7% (18.2% for affirmatives and 5.1% for negative instruments). Most instruments (42) were reported on the ground of political importance or public policy interest. Of the remaining instruments, seven were reported on the ground that there appeared to be inadequacies in the consultation process, two on the ground of imperfectly achieving its policy objective and two on the ground that the explanatory material laid in support of the instrument provided insufficient information.

92.In addition to reporting instruments formally to the House, the Committee includes in its reports information paragraphs where an instrument is of interest, is topical or follows an unusual process. Since the start of the Session, 120 information paragraphs have been published. The Committee also publishes, as appendices to its reports, correspondence with Ministers and additional information provided by departments to supplement Explanatory Memoranda. At the end of each session, the Committee publishes an end of term report. Since this is a two-year session, the Committee published an interim report in April 2018, setting out the principal themes of the year’s work.68

93.The Committee continued its monitoring activity in relation to long-standing concerns with the Government’s preparation and presentation of secondary legislation:

94.In March 2018, during the committee stage debate on the European Union (Withdrawal) Bill, the Leader of the House of Lords, referred to the Government’s proposal, agreed by the Procedure Committee, that the terms of reference of the SLSC should be extended to enable it to carry out a sifting function with regard to certain instruments to be laid under the European Union (Withdrawal) Act whereby the Committee would have power to recommend that instruments proposed to be subject to the negative resolution procedure should be upgraded to the affirmative procedure.69 Preparations have been made to ensure that the Committee has the resources to deal with the challenge of this new function and the anticipated additional 800 to 1,000 instruments to be laid as a result of Brexit-related legislation. As part of that preparatory work, on 23 April 2018, the Committee launched an inquiry into the criteria it should apply in deciding whether to recommend upgrading an instrument to the affirmative procedure. The Committee hopes to report in June 2018. In addition, the Committee has had an exchange of correspondence with the Leader asking for further information and, amongst other things, urging the Government to ensure a steady flow of instruments rather than a series of peaks and troughs.70


56 Delegated Powers and Regulatory Reform Committee, Armed Forces (Flexible Working) Bill [HL], Financial Guidance and Claims Bill [HL], Space Industry Bill [HL] (1st Report, Session 2017–19,
HL Paper 10) para 28.

57 Housing, Communities and Local Government Committee, Pre-legislative scrutiny of the draft Tenant Fees Bill (Third Report, Session 2017–19, HC 583) para 14

58 To the end of April 2018.

59 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal) Bill (3rd Report, Session 2017–19, HL Paper 22). The Committee’s invariable practice previously has been to report after a bill has been introduced into the House of Lords. The DPRRC, in January 2018, agreed that its practice should now be described as reporting on the provisions of any public bill (other than consolidation and, save in exceptional circumstances, supply bills)

60 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal) Bill (12th Report, Session 2017–19, HL Paper 73)

61 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal) Bill: Government Amendments (23rd Report, Session 2017–19, HL Paper 124) and Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal) Bill: Further Government Amendments (24th Report, Session 2017–19, HL Paper 128)

62 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal) Bill: Government Response, Haulage Permits and Trailer Registration Bill [HL]: Government Response (20th Report, Session 2017–19, HL Paper 119)

63 Delegated Powers and Regulatory Reform Committee, Civil Liability Bill [HL]; Family Relationships (Impact Assessment and Targets) Bill [HL]; Home Education (Duty of Local Authorities) Bill [HL] (22nd Report, Session 2017–19, HL Paper 123)

64 Companion (2017), p 195. The DPRRC, in January 2018, agreed that its practice should now be described as reporting on the provisions of any public bill (other than consolidation and, save in exceptional circumstances, supply bills)

66 See for example HC Deb, 25 January 2018, col 108 (Public Bill Committees : Taxation (Cross-border Trade) Bill (Third sitting)) and HC Deb, 30 January 2018, cols 155–6 (Public Bill Committees: Taxation (Cross-border Trade) Bill (Fifth sitting))

67 Suspension motions on 13 July 2017 to allow the draft Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2017 to be moved and on 19 October 2017 to allow the draft Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2017 to be moved.

69 HL Deb, 19 March 2018, cols 152–153




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