Sixtieth Report Contents

Work of the Committee in Session 2017–19

An unusually long session

1.Since 2004 the Secondary Legislation Scrutiny Committee (SLSC)1 has published a series of sessional summaries, usually in its last report of the Parliamentary session, setting out the statistics of the instruments that it has examined in that session and making any observations on examples of good and bad practice that have arisen during the period. The differing length of sessions can make statistical comparisons difficult and, in the extended 2017–19 session, we decided to address this by publishing interim reports so that figures were broadly comparable and so that our observations could be acted on while still relevant.

2.We published an Interim Report2 in April 2018 (our Year 1 Report), looking at Committee activity during the first 12 months of the session (up to 13 April 2018),3 and a Second Interim Report in June 2019, looking at ‘Year 2’ (the subsequent 12 months up to 13 April 2019) (our Year 2 Report).4 Encompassing the peak of the legislative activity in preparing for Brexit, Year 2 was characterised by high volumes and certain new formats, such as the additional Stage 1 function of sifting proposed negative instruments laid under the European Union (Withdrawal) Act 2018 and the SLSC divided into two Sub-Committees to ensure its scrutiny remained timely.5

Government Response to our Year 2 Report

3.Appendix A includes the Government’s Response to the observations made in our Year 2 Report. Both the Government and the Committee acknowledge that the flow of statutory instruments was unpredictable and involved having to deal with unfamiliar processes. This undoubtedly contributed to some of the problems identified and the higher correction rate. We welcome the Government’s commitment to improving Departments’ knowledge of the processes governing the scrutiny of secondary legislation and the quality of the paperwork produced.

4.There is an aspect of the Government’s Response with which we take issue—this is their tendency to equate instruments reported on the ground of policy interest as having been, in some way, “cleared”, implying that no response is necessary, even though the SLSC may have made comments to which a government reply could be expected. The Response notes that in Year 2 the Committee drew 74 of the 77 instruments reported to the attention of the House on the ground of public policy interest, and attributes this to public interest in EU Exit. First, the 77 reported instruments in Year 2 were fairly evenly divided between Brexit (38) and non-Brexit (39) issues. Second, the Response omits the caveat in our Report that of those 74 reported on the grounds of public policy interest, five were jointly reported on the ground of insufficient information, and one jointly on the ground that it may imperfectly achieve its policy objective.

5.We only use the more specific terms of reference for the most egregious examples of poor explanation or consultation practice, but routinely include in reports on “policy interest” further questions that the House may wish to pursue. Such questions indicate that, although the general thrust of the policy is understood, there is some specific area that is less clear.6 The Government’s failure to appreciate this is behind our reminder to Ministers in Recommendation 17 that, where the Committee has published a report on any ground (including therefore the ground of policy interest), they should respond to any issues raised in their opening remarks in debate. We welcome the Government’s assurance that this will be undertaken more assiduously in the future.

Activity since the end of Year 2

6.In the period from the end of Year 2 to the end of the session (14 April-3 September 2019), 170 statutory instruments (SIs)8 were laid for Stage 2 scrutiny (41 affirmatives and 129 negatives). This decrease in activity reflects the fact that this was primarily a tidying up phase, with the vast majority of the Brexit legislation having been laid in Year 2. In the same period, only 19 proposed negatives were laid for Stage 1 sifting, and these were mainly related to the change in Brexit date.

7.During this period, because of the decrease in the number of instruments, the SLSC Sub-Committees met only once before being suspended and scrutiny reverted back to the main Committee. A total of 16 reports were published (one from each of the Sub-Committees and 14 from the main Committee). They drew 12 instruments to the special attention of the House (five affirmative and seven negative instruments): 11 on the ground of public policy interest and one on the ground of insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.9

8.Our concern with that instrument—the Children’s Homes etc. Inspection Fees, Childcare Fees, Adoption and Children Act Register (Amendment) Regulations 2019—was that it removed a duty on adoption agencies to provide relevant information to the Secretary of State about children approved for adoption and approved prospective adopters who have not been matched (as a result of the closure of the Adoption Register for England) before a replacement system was in operation. Such was the degree of our concern that we held an oral evidence session with the Parliamentary Under Secretary of State for Children and Families on 14 May 2019 to probe further. Although additional information was provided, we were left with serious concerns about the potential impact of the policy change on those children who are harder to match with prospective adopters.

Activity over the whole of Session 2017–19

Chart 1: The total number of statutory instruments laid each month during session 2017–19

bar chart showing number of statutory instruments laid each month during Session 2017-19

9.During the 2017–19 session, a total of 1,835 instruments were laid, of which 582 (31.7%) were affirmative and 1,253 negative (68.3%), well above the usual 20:80 split between affirmatives and negatives in a normal session. Of these, the Committee drew 84 affirmatives and 56 negative SIs (140 in total) to the special attention of the House, an overall reporting rate of 7.6% (14.4% for affirmatives and 4.5% for negative instruments). The Committee also published 407 information paragraphs on 480 SIs (26.1% of the total considered).

10.The Departments which laid the largest numbers of instruments in Session 2017–19 were the Department for Environment, Food and Rural Affairs (Defra), which laid 239 instruments (13% of the total), the Department for Business Energy and Industrial Strategy (BEIS) with 197 (10.7%), and the Department for Transport (DfT) with 181 (9.9%). Between them, these Departments laid a third of all the instruments considered in the session.

Chart 2: SIs laid and instruments reported by originating Department

Department

Total

Reported negative

Reported affirmative

Ground for Report10

a

b

c

d

e

f

Cabinet Office

34

0

5

5

0

0

0

0

0

BEIS

197

10

14

24

0

0

0

2

0

DCMS

60

0

5

5

0

0

0

0

0

Defra

239

6

12

18

0

0

0

1

0

DIT

24

0

0

0

0

0

0

0

0

LGBCE

69

0

0

0

0

0

0

0

0

DExEU

11

0

1

1

0

0

0

0

0

DWP*

119

5

3

6

0

0

2

0

0

Education

90

11

2

10

0

0

0

1

2

FCO

94

1

1

1

0

0

0

1

0

Health**

100

3

2

5

0

0

0

0

0

Home Office

155

3

11

13

0

0

0

3

0

House of Commons

0

0

0

0

0

0

0

0

0

Defence

22

0

0

0

0

0

0

0

0

Justice

130

6

3

9

0

0

0

0

0

MHCLG***

111

2

12

7

0

0

1

0

6

NI Office

3

0

0

0

0

0

0

0

0

Privy Council

2

0

0

0

0

0

0

0

0

Scotland

16

0

0

0

0

0

0

0

0

Transport

181

7

7

14

0

0

1

2

0

HMRC

18

0

0

0

0

0

0

0

0

Treasury

152

2

6

8

0

0

0

0

0

Wales

5

0

0

0

0

0

0

0

0

Attorney General

2

0

0

0

0

0

0

0

0

Government Equalities Office

1

0

0

0

0

0

0

0

0

TOTAL

1835

56

84

126

0

0

4

10

8

* Includes Health and Safety Executive

** Includes Food Standards Agency

*** Formerly “DCLG”

Corrections

11.The number of corrections during the 2017–19 Session to both instruments and Explanatory Memoranda rose and was well above the established 5% benchmark. We welcome the Government’s undertaking to address this. We note that Defra was responsible for more than its fair share of those errors, and welcome the Department’s commitment to strengthening the management and oversight of its programme of secondary legislation.

Chart 3: Number of corrections

SIs

No. laid

No. SIs replaced by correction (%)

No. EMs replaced by correction (%)

Affirmative

582

53 (9.1)

88 (15.1)

Negative

1253

76 (6.1)

52 (4.2)

Total

1835

129 (7.0)

140 (7.6)

Proposed negatives

Chart 4: Proposed negatives laid by month

bar chart showing number of porposed negatives laid in Year 2 of Session 2017-19

12.During Year 2, the Government began to lay proposed negative instruments under the European Union (Withdrawal) Act 2018, which requires a two-stage process.11 Initially, proposed negatives were examined to see whether they were appropriate for the negative procedure or whether the Committee should recommend an upgrade to the affirmative procedure (Stage 1 scrutiny). The next step was for the Government to lay the instrument as either a negative or affirmative SI, at which point the Committee would undertake Stage 2 scrutiny in the normal way.

13.During the 2017–19 Session, 247 proposed negatives were laid, and of these we recommended that 45 (18.2%) be upgraded to the affirmative procedure. We welcome the Government’s positive response to all recommendations to upgrade.

14.We have commented previously that the gap between the Stage 1 and Stage 2 was sometimes surprisingly long for some instruments. For example, the proposed negative instrument on the European University Institute (EU Exit) Regulations 2019 was sifted on 19 February 2019 but has yet to be brought forward as an SI.12 We have also identified a number of former proposed negatives that have been made and laid before Parliament as statutory instruments without being sent back to the Committee for Stage 2 scrutiny, and we will be asking the relevant Department for an explanation for this deficiency.

Overview of grounds for reporting

15.In Session 2017–19, the main Committee met 56 times and published 60 reports. The Sub-Committees were active from 15 October 2018 to 30 April 2019, and between them they published 49 reports (47 of which were published in Year 2). In total, therefore there were 109 reports produced in the session, ensuring that all the instruments and proposed negatives were considered in a timely manner and the House informed promptly of any issues or concerns that were raised.

16.The grounds on which we drew the 140 instruments to the special attention of the House in Session 2017–19 were (see also Chart 2 above):

17.On average, the Committee draws about 7% of all negative and affirmative instruments to the special attention of the House. In Session 2017–19, we reported 140 instruments (7.6%) which is only slightly above average. However, we were disappointed that during a period of peak activity so many were reported for insufficient information and many more EMs were found to have minor defects or omissions.

18.On other aspects of the performance of Departments, the observations made in our Second Interim Report14 still apply and, although our recommendations have been accepted by the Government, they are yet to be addressed.


1 Originally established as the Merits of Statutory Instruments Committee in 2003.

2 Interim Report on the Work of the Committee in Session 2017–19 (26th Report, Session 2017–19, HL Paper 125).

3 Because Statutory Instruments (SIs) are laid before Parliament almost continuously, our figures treat the current session as having started with the first instrument that was laid too late to be considered at the final meeting of the previous session. Although the current parliamentary session started on 21 June 2017, the SLSC’s first meeting of this session examined the backlog of SIs that had accumulated since 14 April 2017.

4 Work of the Committee in Session 2017–19: Second Interim Report, 51st Report, Session 2017–19 (HL Paper 376).

5 Active from 15 October 2018 to 30 April 2019.

6 See for example our 53rd Report, Session 2017–19 (HL Paper 383), which includes three SIs all reported on the ground of policy interest: one states that the wide-ranging economic and wider social changes required by the Government’s Climate Change policy should have been described, one that the Explanatory Memorandum should be revised to include information on other elements of the complex background to the Capacity Market that may affect the policy, and one that seeks further reassurance about plans for an IT programme designed to ensure that there is no gap in the arrangements relating to the safeguarding of vulnerable groups.

7 Paragraph 10 and footnote 13 : Work of the Committee in Session 2017-19: Second Interim Report, 51st Report, Session 2017-19 (HL Paper 376)

8 As well as SIs, the Committee considers almost all instruments subject to parliamentary 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.

9 Children’s Homes etc. Inspection Fees, Childcare Fees, Adoption and Children Act Register (Amendment) Regulations 2019 (SI 2019/835). See our 49th Report (HL Paper 366) and 50th Report (HL Paper 371) of Session 2017–19.

10 See SLSC’s terms of reference.

11 This process is explained in more detail in Sifting “proposed negative instruments” laid under the European Union (Withdrawal) Act 2018: criteria and working arrangements (37th Report, Session 2017–19, HL Paper 174).

12 17th Report of SLSC Sub-Committee B, Session 2017–19 (HL Paper 293). (A corrected version of the PN was laid and sifted again the following week 18th Report (HL Paper 298)).

13 Of these reports, 8 items were reported on two grounds which is why the total exceeds 100%.

14 Secondary Legislation Scrutiny Committe, 51st Report, Session 2017–19 (HL Paper 376).




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