Interim report on the Work of the Committee in Session 2019–21 Contents

Committee Activity

33.In Year 1, we met 38 times and published 39 reports (including this one). Of the 901 instruments considered, we drew 60 (6.7%) to the special attention of the House, slightly below the average of about 7% a year. We think this may be because at least 20% of instruments considered had the limited purpose of adapting EU retained law and did not, therefore, involve substantive change in policy. Of the instruments reported, 18% were from BEIS and 18% from DHSC (mainly related to the pandemic). Unusually, a high proportion of instruments laid by MHCLG (nine or 15%) were drawn to the special attention of the House (mainly those related to changes to local planning legislation).

34.All but five of the 60 instruments drawn to the special attention of the House were on the ground of policy interest (92%). Of the five:

Information paragraphs

35.In addition to drawing instruments to the special attention of the House, we alert the House to other instruments which appear to be of interest, are topical or follow an unusual process. We do this by means of short information paragraphs that act as a kind of “news service”. In Year 1, we published 339 information paragraphs on 395 instruments (44% of the total); this was unusually high because 220 of them related to COVID-19 instruments.

36.Early in the pandemic, we decided to provide an information paragraph on all SIs relating to COVID-19, irrespective of their significance, and listed them in a separate section of our reports.33 They included not only lockdown measures but also, for example, planned schemes or requirements deferred as a result of the pandemic. All COVID-19 SIs are listed on a dedicated webpage34 with links to Parliament’s Statutory Instruments Service — and therefore to both the original SI text, EMs and our reports. Some COVID-19 instruments of concern were instead drawn to the special attention of the House. These are also shown on the cumulative list on the webpage.

Chart 3: Instruments considered and reported by Department in year 1 of session 2019-21

Department

Total laid

%

Reported
Affirmative

Reported
Negative

Reason for report35

a

b

c

d

e

f

g

Attorney General

1

0.11

0

0

0

0

0

0

0

0

0

BEIS

112

12.43

7

4

11

0

0

0

0

0

0

Cabinet
Office

15

1.66

2

0

2

0

0

0

0

0

0

DCMS

25

2.77

0

2

2

0

0

0

0

0

0

Defence

7

0.78

0

0

0

0

0

0

0

0

0

Defra

80

8.88

2

0

2

0

0

0

0

0

0

DExEU*

0

0.00

0

0

0

0

0

0

0

0

0

DIT

4

0.44

1

0

1

0

0

0

0

0

0

DWP/HSE

72

8.00

0

0

0

0

0

0

0

0

0

Education

33

3.66

0

3

3

0

0

0

0

0

0

FCO**

25

2.77

0

0

0

0

0

0

0

0

0

Government Equalities
Office

0

0.00

0

0

0

0

0

0

0

0

0

Health***

126

13.98

7

4

11

0

0

0

0

0

0

Home Office

67

7.44

2

2

3

0

1

0

0

0

0

Justice

65

7.21

0

3

2

0

0

0

1

0

0

LGBCE

15

1.66

0

0

0

0

0

0

0

0

0

MHCLG

58

6.44

1

8

8

0

0

0

1

0

0

NIO

16

1.78

2

1

3

0

0

0

0

0

0

Privy
Council

4

0.44

0

0

0

0

0

0

0

0

0

Scotland
Office

8

0.89

0

0

0

0

0

0

0

0

0

Transport

102

11.32

1

4

3

0

0

0

2

0

0

Treasury/HMRC

66

7.33

2

2

4

0

0

0

0

0

0

Wales

0

0

0

0

0

0

0

0

0

0

0

Total

901

27

33

55

0

1

0

4

0

0

*Dissolved on 31 January 2020

**Now incorporates DFID and is known as Foreign, Commonwealth and Development Office

*** Includes Food Standards Agency

Volume and flow

37.The Departments which laid the largest numbers of instruments considered in Year 1 were DHSC 126 (14%), BEIS 112 (12.4%), and DfT 102 (11.3%). Between them, they accounted for almost 40% (see Chart 3 above). We are pleased to note that the DfT instruments included several that addressed their implementation backlog, though more remains to be done.36

38.At the end of the 2017-19 session, we welcomed the Government’s intention to regulate the flow of instruments by continuing the practice of requiring Departments to obtain approval from the Parliamentary Business and Legislation (PBL) Committee of the Cabinet before laying an SI. At that time, we recommended that the Government should review the approval process to evaluate where it has worked well and where there might be weaknesses. There have been significant peaks and troughs of activity in Year 1 — not all of which are explained by the exigencies of the pandemic. We therefore reiterate our previous recommendation that the approval process should be reviewed.

Chart 4: SIs laid by month in year 1 of session 2019-21

 A bar chart showing gross numbers of SIs laid by month in year 1

Overlarge complex SIs

39.We were also disappointed that, towards the end of Year 1, some large complex instruments were laid,37 the most extreme example being a 507-page Statement of Immigration Rules.38 In our report on the Immigration Rules we said that “combining so many policy areas in one very large instrument is wholly unjustified” and that its complexity made effective parliamentary scrutiny “virtually impossible”. On previous occasions, we have commented adversely about large, wide-ranging instruments, a view which members of the House strongly supported in debate. We urge the Government to refrain in the future from adopting this approach.

Withdrawal from the European Union

40.The number of Proposed Negatives (PNs) submitted under the European Union (Withdrawal) Act 2018 significantly diminished in Year 1, with only 32 received, of which two were recommended for upgrade to the affirmative procedure. This compares with 82 in calendar year 2019. Six (19%) of PNs laid had to be relaid due to significant errors. The decrease in PNs was not surprising as most of the required legislation for retained EU law was in place by the end of 2019. Most of this year’s EU Exit instruments have been updates, and corrections, in particular to provide revised arrangements to implement the Northern Ireland Protocol to the Withdrawal Agreement.

41.Other instruments dealing with the UK’s departure from the EU came late in the year (see Chart 1) and were predominantly laid by the Department for Environment, Food and Rural Affairs (Defra), HMT, HM Revenue and Customs and BEIS. Although these instruments did not introduce substantive policy change, we drew several to the special attention of the House because of their impact (for example, in relation to establishing a domestic regime for the regulation of chemicals39 and preparing for new border arrangements40) and, on occasion, our reports highlighted the complexities of implementing the Northern Ireland Protocol.41

Consultation

42.Given their urgency, most recent instruments have had minimal consultation, either because they relate to the pandemic or because systems are disrupted because of the pandemic. However, we have noted a number of creative approaches or short outreach projects by certain Departments, which we commend. We think that the resulting legislation will be more robust and more relevant as a result. For example, we welcomed the Department for Education’s discussions with the Office of the Children’s Commissioner, major children’s charities and others when it prepared legislation to extend certain flexibilities in relation children’s social care, after a lack of consultation on the earlier instrument was criticised.42

Corrections

43.We are disappointed to note that SI corrections have reached almost double the 5% benchmark in Year 1. Some can be attributed to errors noticed after the legislation has been published,43 which consultation might have prevented. Some have been due to procedural errors (such as the wrong script signed by the Minister44 or the script not signed at all45) or drafting errors (such as the instrument being laid without a commencement date46). Some have inadvertently omitted provisions (such as leaving out “public houses”,47 or a particular council from certain lockdown instruments 48 or left redundant material in). In what has been an extraordinarily challenging year, it seems likely that these are all signs of Departments under pressure to produce instruments in a compressed timescale with insufficient time being set aside or available for checking.

Chart 5: Corrections in year 1 of session 2019-21

SIs

Number laid

SIs replaced by correction

EMs replaced by correction

Affirmative

308

47 (15.25%)

26 (8.44%)

Negative

593

39 (6.57%)

27 (4.53%)

Total

901

86 (9.54%)

53 (5.88%)

Conclusion

44.The Committee is very conscious of the twin pressures on the Government of the ending of the Brexit Transition Period against the background of the pandemic but the need for a clear explanation of the justification for legislation and for its intended consequences is even more vital when legislation affects so many people and is being produced at such speed. When we next see the Permanent Secretaries, we will raise with them the issues identified in this report. Some Departments have managed the production of their emergency legislation far more effectively than others, and we will be asking the Permanent Secretaries how the lessons of legislating in the pandemic can be captured and used to improve standards.

45.Raising the standards of legislation and increasing the effectiveness of parliamentary scrutiny is always important but never more so than in times such as these. It is to the achievement of these objectives that the Committee’s work is devoted.


31 See 1st Report, Session 2019-21 (HL Paper 6).

32 See respectively our 6th Report, 16th Report, 22nd Report and 37th Report of session 2019–21.

33 See 11th Report onwards.

34 Secondary Legislation Scrutiny Committee, ‘Scrutiny of secondary legislation laid to tackle coronavirus pandemic’: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/news/115532/scrutiny-of-secondary-legislation-laid-to-tackle-coronavirus-pandemic/.

35 These are the grounds for report set out in our Terms of Reference: a) Policy interest b) changed circumstances since the Act c) inappropriately implements EU legislation d) may imperfectly achieve its policy objectives e) insufficient information f) inadequate consultation g) deals inappropriately with retained EU law.

36 See, for example, 17th Report, Session 2019-21 (HL Paper 73).

37 For example: Draft Plant Health (Phytosanitary Conditions) (Amendment) (EU Exit) Regulations 2020 at 306 pages and Draft Product Safety and Metrology etc. (Amendment etc.) (UK(NI) Indication) (EU Exit) Regulations 2020 which although only 60 pages was extraordinarily convoluted.

38 HC 813 – see our 33rd Report, Session 2019-21(HL Paper 161).

39 Draft REACH etc. (Amendment etc.) (EU Exit) Regulations 2020, 34th Report, Session 2019-21, (HL Paper 172).

40 Draft Customs Safety, Security and Economic Operators Registration and Identification (Amendment etc.) (EU Exit) Regulations 2020, 32nd Report, Session 2019-21 (HL Paper 159).

41 Product Safety and Metrology etc. (Amendment) (Northern Ireland) (EU Exit) Regulations 2020 (SI 2020/1112), 32nd Report, Session 2019-21(HL Paper 159).

42 Adoption and Children (Coronavirus) (Amendment) (No.2) Regulations 2020 (SI 2020/909), 26th Report, Session 2019–21 (HL Paper 126).

43 See the rubric on the Education (Student Fees, Awards and Support etc.) (Amendment) Regulations 2020 (SI 2020/46).

44 For example ,the Health Protection (Coronavirus, Restrictions) (North East of England) (Amendment) Regulations 2020 (revoked) (SI 2020/1012 were made within hours of SI 2020/1010 to correct some defects in the previous instrument “due to a system error” and the Official Controls (Plant Health and Genetically Modified Organisms) (England) (Amendment) (No. 4) Regulations 2020 (SI 2020/1089) which replaced SI 2020/1060).

45 Greater Manchester Combined Authority (Fire and Rescue Functions) (Amendment) Order 2020 (SI 2020/641), re-laid 2 June 2020.

46 SI 2020/46 later replaced by SI 2020/48.

47 SI 2020/1028 corrects the omission in S1 2020/1026.




© Parliamentary copyright 2020