Summary of House of Lords investigative and scrutiny committee activity in 2018–19 Contents

Chapter 4: Secondary legislation committees

Delegated Powers and Regulatory Reform Committee

87.During the period from 1 May 2018 to the beginning of April 2019 (end of the 2018/19 financial year), the Delegated Powers and Regulatory Reform Committee (DPRRC) met 15 times and published 27 reports. It considered 36 bills (20 Government bills and 16 Private Members’ bills),69 and reported on one Legislative Reform Order and one Localism Order.

88.During the reporting period, Brexit-related legislation featured largely in the Committee’s work. Earlier, in September 2017, the Committee had reported on the European Union (Withdrawal) Bill both whilst it was before the Commons and when it was introduced into the Lords. The Committee explained that it had taken this unusual step because of the Bill’s “exceptional constitutional significance.”70 The Committee subsequently adopted the same approach towards certain other Brexit-related Bills, namely the Agriculture Bill (reported in October 2018), the Fisheries Bill (November 2018), the Healthcare (International Arrangements) Bill71 (November 2018 and, following introduction into the Lords, February 2019) and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill (January 2019). Three of the four Bills are still in the House of Commons. The Committee will report on them again once introduced into the Lords. The Government have so far responded to two of the four reports (including two responses to the two reports on the Healthcare Bill). The Fisheries Bill provided a clear demonstration of the value of reporting early; the Government accepted the Committee’s recommendations and put them into effect by way of amendment in the Commons.72 Whilst the Committee’s first report on the Healthcare (International Arrangements) Bill received a less positive response, the Committee appreciated the thoroughness of the Minister’s explanation.73 A more positive response was made in relation to the Committee’s second report on the Bill.74

89.Towards the end of the reporting period and at considerable speed, the Committee reported on the European Union (Withdrawal) (No. 5) Bill. The Bill was introduced into the Commons on 2 April 2018, with remaining stages on 3 April, and then introduced into the House of Lords, followed by second reading, on 4 April. The Committee reported on the Bill in time for the second reading debate.

90.The DPRRC also reported on the Northern Ireland (Executive Formation and Exercise of Functions) Bill whilst in the Commons, in that case because of the expedited timetable for Parliamentary consideration. The Committee’s report was published on 22 October, with second reading and remaining stages in the House of Commons scheduled for 24 October and all stages in the House of Lords on 30 October.75 An amendment giving effect to the Committee’s one recommendation was made whilst the Bill was in the Commons.76

91.Although Brexit-related legislation predominated, the Committee also continued its scrutiny of non Brexit-related bills. These included Government bills such as the Domestic Gas and Electricity (Tariff Cap) Bill, the Ivory Bill and the Counter-Terrorism and Border Security Bill, and Private Members’ bills such as the Mental Health Units (Use of Force) Bill, the Organ Donation (Deemed Consent) Bill and the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill. In commenting on the Ivory Bill and the Mental Health Units (Use of Force) Bill, the Committee used the opportunity to raise a concern common to both Bills about the delegation of power to the Secretary of State to issue guidance which was, in effect, mandatory.77 In their response, the Government undertook to table amendments in relation to the Ivory Bill to meet the point.78

92.The DPRRC considered one Legislative Reform Order (LRO) during the reporting period, the draft Legislative Reform (Horserace Betting Levy) Order 2018. To assist its deliberation, the Committee invited the Minister to give evidence to the DPRRC and the Commons Regulatory Reform Committee (RRC) sitting concurrently.79 The DPRRC observed in its report on the LRO that “sitting concurrently not only provided practical efficiencies for members and witnesses, but enabled each Committee to benefit from the different perspective of the other.”80 Both the DPRRC and the RRC concluded that the draft Order failed to satisfy the requirements of the Legislative Reform Order procedure.81 No further proceedings were therefore taken on the LRO.

93.The DPRRC also considered one Localism Order, the draft Harrogate Stray Act 1985 (UCI World Road Race Championships) Order 2019. It was the third Localism Order to be laid since 2014, each having the effect of disapplying temporarily certain provisions of the Harrogate Stray Act 1985 to enable a cycling event to be held on the Harrogate Stray. Both the DPRRC and RRC concluded that the draft Order satisfied the requirements of the Localism Order procedure, and that the negative procedure should apply.

94.In November 2018, the Constitution Committee published a report on the delegation of powers which included references to the role of the DPRRC.82 The report stated that the DPRRC “provides expert assessment of the appropriateness of proposed delegations of power. Its scrutiny has a beneficial effect on legislation presented to parliament, both in securing government agreement to amend proposed powers of delegation in a bill and, less obviously, in concentrating the minds of ministers and their bill teams during the earlier process of drafting the legislation.”83

Joint Committee on Statutory Instruments

95.The Joint Committee on Statutory Instruments (JCSI) is comprised of seven members from each House and seeks to ensure that the legal drafting of statutory instruments laid before Parliament is complete, appropriate and does not exceed the powers set out in the Act under which the instrument is made. As a result of the volume of Brexit-related secondary legislation, the period from 1 May 2018 to 4 April 2019 was at times a demanding one. In 34 reports, the JCSI considered 950 instruments (including instruments subject to, and those not subject to, a parliamentary procedure), of which 104 were drawn to the special attention of the Houses. In addition, the Committee published three Special Reports: the first on transparency and accountability in subordinate legislation (June 2018),84 the Government’s response to that report (September 2018)85 and a third report on how the Government have acted in response to issues raised by the JCSI (March 2019).86 With regard to the last of these reports, the Committee concluded that the analysis of Government responses indicated that “the Committee’s scrutiny has had a positive and substantial impact on secondary legislation so far this Session” but that there was “room for improvement.”87 The Committee said: “We look to the Government to ensure that there are no instances where a recommendation is simply ignored, and we remind the Government that the Committee, and the Houses, expect Ministers, during debates on instruments, to respond to any issues raised by the Committee.”88

Secondary Legislation Scrutiny Committee

96.2018–19 was an unusually eventful period for the Secondary Legislation Scrutiny Committee (SLSC). Following the passage of the European Union (Withdrawal) Act 2018 (“the withdrawal Act”), the remit of the Committee was extended by the House to include a new sifting function in relation to certain instruments–proposed negative instruments–laid under the withdrawal Act. At the same time, the Committee was given power to appoint sub-committees and to co-opt members to serve on the sub-committees. These new powers enabled the Committee to enlarge its capacity to meet the increased workload caused by a combination of the new sifting function and an anticipated 800 to 1,000 Brexit-related instruments.89 In April 2018, the SLSC launched an inquiry into what criteria should be applied when deciding whether to recommend that a proposed negative be upgraded to the affirmative procedure. The Committee reported its conclusions in July 2018.90 In October 2018, the SLSC appointed two sub-committees, Sub-Committee A under the chairmanship of Lord Trefgarne (also chairman of the SLSC), and Sub-Committee B under the chairmanship of Lord Cunningham of Felling. Eleven members of the House were co-opted, six to Sub-Committee A and five to Sub-Committee B, giving each sub-committee a complement of 11 members. The first meeting of Sub-Committee A was on 15 October and of Sub-Committee B on 16 October. They met weekly until 30 April 2019 when scrutiny work reverted to the SLSC.

97.During the period from 1 May until 9 October 2018 (after which the sub-committees began work), the SLSC met 14 times and published 15 reports. These reports concerned 285 instruments, of which 48 were affirmative and 195 negative instruments, and 19 proposed negative instruments. The Committee drew to the special attention of the House 12 affirmative and five negative instruments, and recommended that two proposed negative instruments should be upgraded to the affirmative procedure.

98.Following the appointment of the sub-committees, the SLSC met relatively infrequently. It held three meetings and published five reports. These included reports on the Government’s assessment of the likely volume and flow of Brexit-related instruments (November 2018),91 on the quality of information provided in support of secondary legislation (following an evidence session in November 2018 with three Permanent Secretaries, repeating similar sessions in July 2016 and September 2017) (December 2018),92 and on accessing the work of the Committee and information relating to secondary legislation (March 2019).93 The Committee also published a report drawing the special attention of the House to the draft European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 (March 2019).94

99.From October 2018 until they were suspended, Sub-Committee A met 25 times and Sub-Committee B 24 times. They published 25 and 24 reports respectively. These reports concerned a total of 741 instruments, of which 344 were affirmative and 397 negative instruments, and 201 proposed negative instruments. They drew to the special attention of the House 44 affirmative and 16 negative instruments, and recommended that 40 proposed negative instruments should be upgraded to the affirmative procedure. Many of the instruments were Brexit-related and were often quite lengthy and complex. Sub-Committee B drew the special attention of the House to the draft Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, noting, amongst other things, that its length (over 600 pages) and complexity was “a challenge to effective parliamentary scrutiny”95 and risked compromising the accessibility of the law.96 Sub-Committee A was similarly critical of the draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 on the ground, amongst other things, that it covered such a diverse range of subjects that it inhibited effective scrutiny.97 In February 2019, the sub-committees raised with the Chancellor of Exchequer the issue of timely availability of impact assessments (IAs), following instances where an IA was provided well after the instrument had been laid and, on occasion, after it had been debated. In response, the Chancellor acknowledged the importance of making IAs available for parliamentary scrutiny.

100.There is no equivalent to the SLSC in the Commons. With the introduction of sifting, however, a Commons committee–the European Statutory Instruments Committee (ESIC)–was appointed to exercise the new function. From an early stage, the SLSC and ESIC adopted a collaborative approach and, in accordance with the recommendation of the Commons Procedure Committee, sought “to establish and maintain good working relations and common understanding” with each other.98 The SLSC and ESIC recommendations to upgrade to the affirmative procedure often, but not always, coincided. The Government have not rejected any of the recommendations to upgrade of either Committee.

101.The SLSC continues to scrutinise some treaties. Given forecasts about the numbers of treaties needed as a result of Brexit, in January 2019, it was agreed that the European Union Select Committee should, until the end of the session, be responsible for scrutinising Brexit-related treaties and international agreements.

102.In addition to drawing instruments to the special attention of the House, the Committee and sub-committees included in their reports information paragraphs where an instrument was of interest, was topical or followed an unusual process. Between 1 May 2018 and October 2018, before the sub-committees were appointed, the SLSC published 72 information paragraphs, and between October 2018 and until their suspension, the sub-committees published a total of 191 information paragraphs. In order to assist the House, instruments about which information paragraphs have been published (as well as instruments drawn to the special attention of the House) are now identified by an italicised note in House of Lords Business.99 The Committee and sub-committees also published, as appendices to their reports, correspondence with Ministers and additional information provided by departments to supplement Explanatory Memoranda.

103.The work of the SLSC and its sub-committees ranges over the whole of government policy, and their reports are cited frequently in debate. A notable example was the SLSC’s report on the draft Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018, in July 2018, concerning the use of persons under 18 being used as a covert human intelligence sources.100 As well as raising significant concern in the House, the issue was extensively covered in the media. One newspaper commented:

“Downing Street tells us that child spies are used very rarely by British police and intelligence agencies, and only when it is judged really vital. How reassuring. We would not know if they were being used at all were it not for government plans to relax the controls on their use. The House of Lords committee on secondary legislation has revealed that children are being used in covert operations against terrorists, gangs and drug dealers, and child sexual exploitation (and in doing so, incidentally, demonstrated parliament at its best and most useful, in a week where it has often looked at its worst).”101

104.More recently, in March 2019, Sub-Committee B reported on the draft Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019.102 The report was mentioned during the debate on the instrument along with the fact that the Sub-Committee had, exceptionally, received submissions from over 430 correspondents.


69 These figures include scrutiny of bills introduced into either the House of Lords or the House of Commons during the reporting period. They do not include instances where, having reported on a bill during the period prior to the reporting period, the DPRRC subsequently reported on Government amendments or published correspondence or a Government response.

70 Delegated Powers and Regulatory Reform Committee, 3rd Report (3rd Report, Session 2017–19, HL Paper 22, para 6)

71 Later changed to the Healthcare (European Economic Area and Switzerland Arrangements) Bill.

72 Delegated Powers and Regulatory Reform Committee, 45th Report (45th Report, Session 2017–19, HL Paper 274, Appx 1)

73 Delegated Powers and Regulatory Reform Committee, 47th Report (47th Report, Session 2017–19, HL Paper 289, para 6)

74 Delegated Powers and Regulatory Reform Committee 50th Report, (50th Report, Session 2017–19, HL Paper 336, Appx 1)

75 Delegated Powers and Regulatory Reform Committee, 36th Report (36th Report, Session 2017–19, HL Paper 204, para 8)

76 Delegated Powers and Regulatory Reform Committee, 37th Report (37th Report, Session 2017–19, HL Paper 212)

77 Delegated Powers and Regulatory Reform Committee, 31st Report (31st Report, Session 2017–19, HL Paper 177)

78 Delegated Powers and Regulatory Reform Committee, 35th Report (35th Report, Session 2017–19, HL Paper 202, Appx 1)

79 Lord Lipsey also gave oral evidence, and a number of bodies made written submissions.

80 Delegated Powers and Regulatory Reform Committee, 41st Report (41st Report, Session 2017–19, HL Paper 249, para 7)

81 Ibid., para 19, and Regulatory Reform Committee, Draft Legislative Reform (Horseracing Betting Levy) Order 2018 (Third Report, Session 2017–19, HC 1756)

82 Delegated Powers and Regulatory Reform Committee, 16th Report (16th Report, Session 2017–19, HL Paper 225)

83 Ibid., para 33

84 Joint Committee on Statutory Instruments, Transparency and Accountability in Subordinate Legislation (First Special Report, Session 2017–19, HC 1158, HL 151)

85 Joint Committee on Statutory Instruments, Transparency and Accountability in Subordinate Legislation: Government Response to First Special Report (Second Special Report, Session 2017–19, HC 1577, HL Paper 189)

86 Joint Committee on Statutory Instruments, Government response to parliamentary scrutiny of statutory instruments (Third Special Report, Session 2017–19, HC 2057, HL Paper 311)

87 Joint Committee on Statutory Instruments, Government response to parliamentary scrutiny of statutory instruments (Third Special Report, Session 2017–19, HC 2057, HL Paper 311) paras 7 and 8

88 Joint Committee on Statutory Instruments, Government response to parliamentary scrutiny of statutory instruments (Third Special Report, Session 2017–19, HC 2057, HL Paper 311) paras 7 and 8

89 This figure was later revised by the Government to “below 600”.

90 Secondary Legislation Scrutiny Committee, 37th Report (37th Report, Session 2017–19, HL paper 174)

91 Secondary Legislation Scrutiny Committee, 42nd Report (42nd Report, Session 2017–19, HL Paper 214)

92 Evidence was taken from Elizabeth Gardiner, First Parliamentary Counsel and Permanent Secretary of the Government in Parliament Group in the Cabinet Office; Jonathan Jones, Treasury Solicitor, and Sir Chris Wormald, Permanent Secretary Department of Health and Social Care and Head of the Civil Service Policy Profession. Secondary Legislation Scrutiny Committee, 43rd Report (43rd Report, Session 2017–19, HL Paper 248)

93 Secondary Legislation Scrutiny Committee, 45th Report (45th Report, Session 2017–19, HL Paper 312)

94 Secondary Legislation Scrutiny Committee, 46th Report (46th Report, Session 2017–19, HL Paper 326)

95 Secondary Legislation Scrutiny Committee (Sub-Committee B), 17th Report (17th Report, Session 2017–19, HL Paper 293, para 55)

96 Secondary Legislation Scrutiny Committee (Sub-Committee B), 17th Report (17th Report, Session 2017–19, HL Paper 293, para 55)

97 Secondary Legislation Scrutiny Committee (Sub-Committee A), 17th Report (17th Report, Session 2017–19, HL Paper 292, para 5)

98 Procedure Committee, Scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018 (Sixth Report, Session 2017–19, HC 1395, para 54)

99 See Secondary Legislation Scrutiny Committee, 45th Report (45th Report, Session 2017–19, HL Paper 312, para 32).

100 Secondary Legislation Scrutiny Committee, 35th Report (35th Report, Session 2017–19, HL Paper 168)

101 The Guardian view on police and child spies: ends don’t always justify the means, The Guardian (20 July 2018): https://www.msn.com/en-gb/news/uknews/the-guardian-view-on-police-and-child-spies-ends-don%E2%80%99t-always-justify-the-means/ar-BBKSaH2 [accessed 15 May 2019]

102 Secondary Legislation Scrutiny Committee (Sub-Committee B), 22nd Report (22nd Report, Session 2017–19, HL Paper 327)




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