Interim report on the Work of the Committee in Session 2017-19
Number of instruments received
30.This Committee routinely publishes a report on trends in its activity at the end of each session. As this is a two-year session, and the Committee’s scrutiny tasks are likely to be added to once the European Union (Withdrawal) Bill has received Royal Assent, we thought it helpful to publish an interim analysis of the statutory instruments (SIs) received in the 12 months since our last end of session report as an interim statement.
31.The reduction in the number of SIs14 laid before Parliament which we have observed since 2015 has continued, with 663 instruments laid for scrutiny over the last 12 months (compared with 659 in 2016-7 and 712 in 2015-16). This may be attributable to the impact of the 2016 referendum and the 2017 General Election on the work of Government. The session got off to a very slow start with only 54 SIs being laid in Q2 2017 (8%), but the number of instruments laid increased steeply at the end of 2017 with over 50% of the year’s SIs laid between 1 December 2017 and 13 April 2018 (of which 37% (246) were laid in Q1 2018). The proportion of affirmative instruments within that total, 20%, has returned to the average, the number of correcting instruments has also fallen to 4.1%, below the 5% benchmark figure, but the number of Explanatory Memoranda (EMs) needing revision, 44, still remains too high (6.6%).
32.The Home Office laid the largest proportion of SIs in the first 12 months of the current session (11.6%), followed by the Department for Business, Energy and Industrial Strategy (BEIS) (10.3%), the Department for Transport (DfT) (9.5%), and then the Treasury (9%); between them, these four departments laid over 40% of all the instruments considered (see Chart 3). Students’ fees, legal aid, and environmental matters attracted most correspondence from the public and these submissions have been published beside the reports on our webpage.15 As ever, the Committee is grateful to all those who have made contributions that have provided added insight into how an instrument would operate in practice.
Analysis of grounds for report
33.On average, the Committee draws about 7% of instruments considered to the special attention of the House. So far, in Session 2017–19, we have reported 51 instruments (7.7%). Of those:
- 42 were on the ground of “interest”, two of which were jointly reported on the ground of “insufficient explanation”.
- 7 were reported on the ground of “inadequate consultation”. One of which was a particularly egregious example where a consultation on school teachers’ pay lasted only three weeks and took place in July at the end of the school year when teachers are particularly busy. Not surprisingly, it drew numerous complaints from the profession.16
- Two instruments were reported on the especially critical ground that “they may imperfectly achieve their policy objective”. In our 1st Report of the session, we commented on regulations setting out exceptions to the two child limit for social security in Northern Ireland;17 and, in our 17th Report, we commented on an apparent policy disconnect between the Ministry of Housing, Communities and Local Government selling off NHS land and the Department of Health and Social Care intending to build homes for nurses.18 In each case we felt that the policy had been ill thought-through and that key operational issues had not been resolved before the instrument was laid.
Consultation
34.Since the introduction of the Government’s Consultation Principles in 2012, the Committee has been observing the Government’s more flexible approach to consultation, to ensure that it remained fit for purpose. When the Rt Hon. Sir Oliver Letwin, MP, was Minister at the Cabinet Office, we found that he listened carefully to our concerns. There have been frequent changes in post-holders over the last year or so which have disrupted our dialogue with the Cabinet Office. We are not the only Committee to have noted Whitehall’s trend towards fewer and shorter consultations. The Lords’ Constitution Committee published a report in October 2017 based on new evidence but expressing similar concerns and endorsing our view that six weeks should be the minimum period for a public consultation.19 We were therefore very disappointed to see that the latest revision of the Consultation Principles20 makes no reference to a minimum acceptable duration for a consultation.
35.The current post holder, Oliver Dowden MP, gave evidence to the Committee on 20 March 2018. We were disappointed that he, like several of his predecessors, stepped back from Sir Oliver Letwin’s commitment that the Cabinet Office should have an active monitoring role, and also that Mr Dowden was content that decisions about the duration of consultations should be left to the discretion of the individual Whitehall department. There is a more detailed description of this event on page 11 our 25th Report,21 and the corrected transcript is published on our website.22
36.During the oral evidence session, Mr Dowden made much of the fact that, at that stage in this session, our Reports had drawn to the special attention of the House only one instrument on the specific ground of “inadequate consultation” (see paragraph 33 above). This fails to acknowledge, however, that the Committee has raised concerns about the consultation process in a number of cases as part of a wider critique. For example, three separate groups of instruments were mentioned in our 1st Report of this session for poor consultation practice, including one from the Department for Environment, Food and Rural Affairs where the consultation was limited to two weeks on the ground of urgency, but the instrument was not then laid for a further six months.23 We do not see it as our role to relieve the Cabinet Office of the responsibility for monitoring consultation practice, but we have exemplified our concern on numerous occasions, not only in drawing individual SIs to the attention of the House.
“Purdah”
37.One of the reasons frequently given by Departments for curtailing public consultation or for long delays between the consultation and the instrument actually being laid is the intervention of a “purdah period” prior to an election. While fully cognisant of the reasons why controversial legislation should not be promoted or discussed during a general election period, we felt that this excuse was being used excessively. We drew our concerns to the attention of the Government and the response, published in our 23rd Report,24 undertakes to consider the examples we gave when next revising the guidance. Mr Dowden also stated that he expected “the vast majority of SIs to proceed as normal during the local election campaign”. We will monitor the position and report back at the end of the session.
Guidance
38.In our last end of term report,25 we were strongly critical of the increased use of guidance to set out how legislation would operate in practice. Two linked problems were identified: first that the guidance was usually not available at the time we were considering an instrument; and, second, that Departments were leaving to guidance key definitions, statements about who was in scope of the legislation and the basis for decisions affecting a person’s career, benefits or eligibility to stay in this country. We wrote to the then Minister for the Cabinet Office on the matter who replied that this deficiency would be addressed in training given to civil servants. We are pleased to note that this trend has decreased markedly,26 but we continue to be vigilant. We remain strongly of the view that definitions and criteria on which decisions will be made should be set out clearly on the face of the instrument. Legislation is subject to Parliamentary scrutiny, whereas guidance is not and could subsequently be changed without reference to Parliament.
Impact assessment
39.Another area where there have been welcome signs of improvement is in the assessment of the impact of legislation. We regard this as an essential part of every EM and see it as having two stages:
- every EM should have an explanation of the costs and benefits of the legislative change proposed; and,
- for more significant instruments, whether in terms of either cost or policy significance, a formal Impact Assessment (IA) document should be made available.
40.We have repeatedly made the point that competent policy formulation includes due consideration of the anticipated impact of the legislation in the real world: not just the cost to business but how many individuals are likely to be affected and whether the effects will represent a net gain or loss to the individual (and this is not purely a financial assessment). We are pleased to note that the majority of the EMs that we see now have an adequate summary of the effects of the legislation. Some, like the Department of Transport, have taken to attaching the Regulatory Triage Assessment that they prepare to demonstrate why they do not need to produce a full IA.27 Even where there are no financial effects, those preparing the EMs are getting better at explaining their reasoning rather than hiding behind the bald statement “no Impact Assessment is necessary”.
41.The Government’s policy approach to the production of formal IAs during this session has evolved. In summer 2017 there was a backlog of IAs, which led to several IAs being laid weeks after the instrument to which they related.28 As we are obliged to report promptly, such delays can significantly compromise our ability to scrutinise an instrument. The Government attributed these delays to the election campaign. This surprised us. Whilst we could understand that legislation cannot be published during the purdah period, we could not see why the preparation of an IA might be delayed. Nor could we see any valid reason why provisional or indicative figures could not have been included in the EM, particularly as these instruments clearly met the criterion of imposing significant costs on business.
42.As a response to our concerns and the challenge of processing the forthcoming Brexit-related SIs, the Government have amended the triage process and IAs will now only be mandatory for instruments with a net annual impact of more than £5 million on business. For other instruments, the provision of an IA will be at the discretion of the relevant Department. We note however that Lord Henley’s letter to us29 reiterates the commitment that Departments, when exercising that discretion, must take into account the needs of Parliament: for this Committee that means that Departments making major changes to public policies should also “show their workings”. We welcome the supportive statement from Lord Henley that Departments must ensure that an Explanatory Memorandum provides sufficient information on the impact of a statutory instrument, even if a formal Impact Assessment has not been prepared.
Corrections
43.Room for improvement remains in the number of corrections that we are asked to consider. Although the overall percentage of errors in SIs has decreased to 4.1%, we have now seen the Foreign and Commonwealth Office’s fourth attempt at the same instrument30 and the Department for Education has issued two further instruments to revoke and then replace the original instrument without change because of a timetabling difficulty in the Commons.31 Such errors are a waste of both time and resources.
44.A further source of frustration remains the number of EMs that we have asked to be corrected or revised, often for simple mistakes such as inaccurately stating the title of the instrument or leaving in dates from an original draft that no longer match the instrument when laid. Although our impression is that there has been a general improvement in the content of EMs overall, the numbers that have needed to be replaced still remain too high at 44 (6.6% of the total, and for affirmative instruments the replacement rate was even higher 12.9%). There have been some exceptionally good examples,32 there have equally been some very poor ones.33 We acknowledge much training is being done within Departments and by Civil Service Learning to improve the content of Explanatory Memoranda but there still appear to be problems with the clearance process in some Departments if they allow seriously defective EMs to be laid.
Oral Evidence
45.Our concerns about how effectively SI matters are handled within Departments were highlighted by the Criminal Justice (European Investigation Order) Regulations 2017 (SI 2017/730) on which we took oral evidence from the Minister, Nick Hurd MP, because the Home Office had failed to respond to a letter seeking supplementary information after the six weeks of the summer recess.34 In the oral evidence session, the Committee pointed out that the reason that we had had so many questions was that the EM presented with the instrument assumed the reader had an extensive knowledge of both Directive 2014/41/EU and of the current UK system. For example, without further elucidation it said: “The transposition… broadly aligns with existing procedures under the Crime (International Cooperation) Act 2003” (EM para 4). Although the Minister described the failure to respond to our letter as an isolated incident, the Committee commented that this case raised questions not only about the Home Office’s mechanisms for dealing with Parliamentary requests and the priority that they are given, but also about the quality of the original EM and the clearance process.
46.This theme also came up in our oral evidence session with the three Civil Service heads of profession about the overarching initiative to improve the quality of the information provided in support of legislation across Whitehall. This session, in September 2017,35 was a follow up to see what progress had been made in the year since we had first asked them to address the deficiencies we had identified.36
47.Sir Chris Wormald, as Head of the Civil Service Policy Profession, said that the seven future actions set out in their letter following the July 2016 session could be grouped under three main headings: awareness, and whether senior civil servants took this issue as seriously as they should; capacity, particularly training, development and guidance; and process, both at departmental level and centrally, for checking the material that eventually came to Parliament. He said that although there had been considerable progress towards these three main objectives, much more remained to be done before these initiatives resulted in the consistent improvement to the quality of information supporting statutory instruments which both the Committee and the leaders of the Civil Service wished to see.
48.The Committee’s concern at that stage was that although many structures had been put in place by September 2017, some 15 months after our initial evidence session, very few had actually started delivering. Since September we have noted, and indeed our staff have contributed to, the large amount of training being done,37 but there are concerns that this will not keep pace with some Departments’ rapid recruitment of staff to deal with the challenge of Brexit. We therefore place even more stress on the need for individual Departments to have an effective clearance mechanism through senior staff, so that errors made through inexperience are caught before the legislation is formally laid before Parliament.
The SIs to implement Brexit
49.In the course of our oral evidence session with Mr Hurd, we also made clear that although an increased volume of SIs is to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny.38 We therefore welcome the appointment of a Senior Responsible Official and a Responsible Minister in each Department to ensure that necessary standards are maintained. This also provides us with a conduit where a need for improvement is identified and, in particular, may ensure that the question raised by Sir Chris Wormald about whether senior civil servants are taking this issue as seriously as they should, is directly addressed within each Department.
50.Another measure that the Government have introduced in anticipation of the additional 800 to 1,000 instruments to be generated by Brexit-related legislation is a sub-committee of the Cabinet’s Parliamentary Business and Legislation (PBL) Committee to manage the flow of SIs being laid before the House. From our perspective, on the receiving end, the weekly numbers of SIs laid have been extremely erratic, to the extent that we have cancelled meetings due to insufficient material. We hope that in future, especially once the Brexit-related instruments begin to be laid, the PBL Committee will ensure a more consistent flow.
51.Less fluctuation in the numbers of SIs received each week would help us to fulfil the additional duties that the Secondary Legislation Scrutiny Committee may acquire once the European Union (Withdrawal) Bill is passed. The Leader of the House of Lords has announced that it is the Government’s intention that the sifting function to be undertaken by the European Statutory Instruments Committee in the House of Commons should be carried out by this Committee in the Lords.39 As currently framed, this would involve the Committee having 10 sitting days to consider “negative in draft” instruments laid under the Act and to decide whether to recommend an upgrade to the affirmative procedure. All the instruments so considered, would then be subject to scrutiny under our normal terms of reference once formally laid. We have launched a short inquiry into the criteria which should be applied in deciding whether to recommend an upgrade40.
Statistical Analysis
52.We met 26 times between the start of this Session and 24 April 2018 and published 26 reports on a total of 663 instruments (132 affirmatives and 531 negatives). We drew 24 affirmatives and 27 negatives (51 in total) to the special attention of the House: an overall reporting rate of 7.7% (18.2% for affirmatives and 5.1% for negative instruments). We held three oral evidence sessions, and have published a number of written submissions from members of the public and organisations alongside our reports on our publications page.
53.The grounds on which we drew the 51 instruments to the special attention of the House in this session were (see also Chart 3):
- 42 instruments (79.2% of those reported) on the ground of political importance or public policy interest;
- 2 (3.8%) on the ground of imperfectly achieving its policy objective;
- 2 (3.8%) on the ground that the explanatory material laid in support provides insufficient information;41
- 7 (13.2%) on the ground that there appear to be inadequacies in the consultation process.
54.In line with our previous practice we have limited the instruments we draw to the special attention of the House to those which, in our view, raise issues that may be of particular concern to the House. We alert the House to other instruments which appear to be of interest, are topical or follow an unusual process, by means of short information paragraphs that act as a kind of “news service”. Since the start of the Session, we included 120 such paragraphs covering (21.7%) of the total number of instruments, a 5% rise on the previous two years (see Chart 5.)
Chart 1: The total number of instruments aid each calendar year since 2007
Chart 2: The number of SIs laid in Session 2017-19
Chart 3: Breakdown of instruments laid by department and grounds for report
Department |
Total |
Percentage of Total |
Reported negative |
Reported affirmative |
Ground for Report42 |
|||||
a |
b |
c |
d |
e |
f |
|||||
|
Cabinet office |
10 |
1.5 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
BEIS |
68 |
10.3 |
5 |
2 |
7 |
0 |
0 |
0 |
1 |
0 |
|
DCLG* |
52 |
7.8 |
1 |
10 |
4 |
0 |
0 |
1 |
0 |
6 |
|
DCMS |
22 |
3.3 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
DEFRA |
48 |
7.2 |
5 |
2 |
7 |
0 |
0 |
0 |
0 |
0 |
|
DIT |
5 |
0.8 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
LGBC** |
31 |
4.7 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
DExEU |
0 |
0.0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
DWP*** |
58 |
8.7 |
2 |
0 |
1 |
0 |
0 |
1 |
0 |
0 |
|
Education |
38 |
5.7 |
9 |
1 |
9 |
0 |
0 |
0 |
0 |
1 |
|
FCO |
21 (of which Treaties 11) |
3.2 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Health**** |
35 |
5.3 |
0 |
1 |
1 |
0 |
0 |
0 |
0 |
0 |
|
Home Office |
77 |
11.6 |
1 |
5 |
6 |
0 |
0 |
0 |
0 |
0 |
|
H of Commons |
0 |
0.0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Defence |
7 |
1.1 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Justice |
56 |
8.4 |
1 |
1 |
2 |
0 |
0 |
0 |
0 |
0 |
|
NI Office |
1 |
0.2 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Privy Council |
0 |
0.0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Scotland |
5 |
0.8 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Transport |
63 |
9.5 |
2 |
2 |
4 |
0 |
0 |
0 |
0 |
0 |
|
HMRC |
3 |
0.5 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Treasury |
60 |
9.0 |
1 |
0 |
1 |
0 |
0 |
0 |
0 |
0 |
|
Wales |
2 |
0.3 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
Attorney General |
2 |
0.3 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
0 |
|
TOTAL |
663 |
|
27 |
24 |
42 |
0 |
0 |
2 |
2 |
7 |
* “MHCLG” from 08/01/18
** Local Government Boundary Commission for England
*** Includes Health and Safety Executive
**** Includes Food Standards Agency. “DHSC” from 12/01/18
Chart 4: Corrections
SIs |
No. laid |
No. SIs replaced by correction |
Percentage |
No. EMs replaced by correction |
Percentage |
|
Affirmative |
132 |
6 |
4.5 |
17 |
12.9 |
|
Negative |
531 |
21 |
3.9 |
27 |
5.1 |
|
Total |
663 |
27 |
4.1 |
44 |
6.6 |
Chart 5: The percentage of SIs that were the subject of short paragraph compared with the last five sessions
14 As well as SIs the Committee considers almost all instruments subject to procedure: for example, statutory Codes, Treaties and Immigration Rules but the term SIs is used in this report as short hand for all the instruments within our remit.
15 http://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee/publications/ [accessed 23 April 2018].
16 School Teachers’ Pay and Conditions Order 2017 (SI 2017/811) 5th Report, Session 2017-19 (HL Paper 20).
17 Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) (Amendment) Regulations (Northern Ireland) 2017 (SR 2017/79) 1st Report, Session 2017-19 (HL Paper 4).
18 Homes and Communities Agency (Transfer of Property etc.) Regulations 2018 (SI 2018/8) 17th Report, Session 2017-19 (HL Paper 71). We published subsequent, related correspondence with the Parliamentary Under-Secretary of Health in our 19th Report (HL Paper 78).
19 The Legislative Process: Preparing Legislation for Parliament, Lords Constitution Committee 4th Report, Session 2017-19 (HL Paper 27).
20 Consultation Principles (v 4), Published 19 March 2018.
21 25th Report, Session 2017-19 (HL Paper 120).
22 https://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee/publications/ [accessed 23 April 2018].
23 Single Common Market Organisation (Emergency Aid) (England and Northern Ireland) Regulations 2017 (SI 2017/599), 1st Report, Session 2017-19 (HL Paper 4).
24 23rd Report, Session 2017-19 (HL Paper 105).
25 32nd Report, Session 2016-17 (HL Paper 161).
26 Examples of good practice were SI 2017/835 Co-ordination of Regulatory Enforcement Regulations 2017 mentioned in our 5th Report Session 2017-19 (HL Paper 20) and SI 2017/876 Facilitation of Tax Evasion Offences (Guidance About Prevention) Regulations 2017 mentioned in our 6th Report (HL Paper23).
27 See for example the Triage Assessment attached to the Merchant Shipping (Maritime Labour Convention)(Miscellaneous Amendments) Regulations 2018 (SI 2018/242).
28 See for example Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (SI 2017/692) 2nd Report, Session 2017-19 (HL Paper 8) and Government response 3rd Report (HL Paper 14). No figures were included in the EM laid with the instrument and HM Treasury only published the final IA more than two weeks after the Regulations were laid. The IA showed that implementing the Regulations would give rise to a net cost to business of £5.2 million per year.
29 See letter from Rt Hon. Lord Henley, Parliamentary Under Secretary of State for BEIS published in our 15th Report, Session 2017-19 (HL Paper 59).
30 Draft European Organization for Astronomical Research in the Southern Hemisphere and the European Space Agency (Immunities and Privileges) (Amendment) Order 2018, see explanation in section 3 of the Explanatory Memorandum.
31 See SI 2018/136 , SI 2018/434 and SI 2018/443 on Education (Student Support) 25th Report, Session 2017-19 (HL Paper 120).
32 See EMs to Pharmacy (Preparation and Dispensing Errors – Registered Pharmacies) Order 2018 (SI 2018/181) or Motor Cars (Driving Instruction) (Amendment) Regulations 2017 (SI 2017/1156).
33 See the original EMs to the Draft Investigatory Powers (Codes of Practice) Regulations 2018 which in our 16th Report of this session we regarded as being dismissive, the Immigration and Nationality (Fees) (Amendment) Regulations 2017 (SI 2017/885) which we regarded as being incomprehensible, or the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) (Amendment) Regulations 2017 (SI 2017/1020) which assumed too much knowledge in the reader 10th Report, Session 2017-19 (HL Paper 37).
34 See 5th Report, Session 2017-19 (HL Paper 20).
35 Described in our 6th Report, Session 2017-19 (HL Paper 23) and in the transcript on our publications page.
36 7th Report, Session 2016-17 (HL Paper 32) and in the transcript on our publications page.
37 Letter of 14 March 2018 from Mr David Lidington CBE MP, published in Appendix 4 of this Report.
38 See 5th Report, Session 2017-19 (HL Paper 20).
39 HL Official Report, 19 March 2018, cols 152-3.
40 See: https://www.parliament.uk/secondary-legislation-eu-withdrawal-criteria [accessed 25 April 2018]
41 Two instruments were reported jointly on the grounds of interest and insufficient information. 19th Report, Session 2017-19 (HL Paper 78).