Chapter 1: Introduction
1.It is generally accepted that the pace of change in our society has quickened dramatically in recent years. There are many reasons for this but the impacts of new technology, social media and the rolling 24/7 news cycle would feature large in any list. As a result, the somewhat stately pace at which primary legislation is made has come under strain. To meet this challenge, governments of the day have increasingly drafted primary legislation which provides only the broadest outlines of the direction of policy travel.1 All the detail—the parts which will have a direct impact on individual members of the public–is left to secondary legislation which is subject to a much lower level of parliamentary scrutiny.2 This represents a significant shift in the balance of power between Parliament (the legislature) and government (the executive), and we believe that the public would be astonished if it became widely known how much legislation is passed without effective scrutiny by Parliament. This long-term trend has been given greater impetus by the twin challenges of UK withdrawal from the EU and the COVID-19 pandemic. To meet those challenges, Parliament has had to pass a great deal of primary and secondary legislation, often at speed and in quick succession. Much of that legislation has resulted in a further significant shift in the balance of power between Parliament and government.
2.But, whatever the reason, if because of modern conditions Parliament is being asked to accept new ways of legislating, then it is surely right that the Government must stand ready to accept new methods of scrutiny and of holding them to account. So, like others, we take the view that there is now an urgent need to take stock and to re-balance that relationship.
3.We acknowledge that this is not a light undertaking. If the weight of legislation continues to increase to match the complexity of modern life and if, at the same time, the balance of power is re-set so that Parliament regains greater control over legislation—either by requiring bills to contain greater detail on their face or by applying more robust scrutiny procedures to secondary legislation—then we recognise that the capacity of Parliament to handle this greater workload will have to be addressed. This is in part a practical matter, and we would look to the Government and the two Houses to support and facilitate the changes needed within Parliament to expand the resources of the two Houses to meet this challenge.
Background
4.Earlier this year, on 20 April, we took oral evidence from three Permanent Secretaries: Dame Elizabeth Gardiner, First Parliamentary Counsel, and Permanent Secretary, Government in Parliament Group; Susanna McGibbon, Treasury Solicitor and Permanent Secretary, Government Legal Department; and, Tamara Finkelstein, Permanent Secretary, Department for Environment, Food and Rural Affairs, and Head of the Civil Service Policy Profession. This is not the first time we have held such a session. Although individual officeholders have changed—this was the first occasion for Ms McGibbon and Ms Finkelstein—we have taken evidence from the three Permanent Secretaries on previous occasions in 2016, 2017 and 2018.3
5.The theme of those earlier evidence sessions was the quality of information provided in support of secondary legislation. Over the years these sessions have, in our view, led to a helpful and productive relationship between the Committee and departments, with welcome developments such as implementation of a 7-point improvement plan to improve secondary legislation scrutiny support. This included: creation of an SI (Statutory Instrument) Hub which, amongst other things, examines all Secondary Legislation Scrutiny Committee (SLSC) and Joint Committee on Statutory Instruments (JCSI) reports and draws out key concerns; improvements in training; the appointment of Senior Responsible Owners (SROs) in each department4 with responsibility for all secondary legislation in the department (both the process and the quality of legislation); and new guidance on the preparation of Explanatory Memoranda (EMs).
Range of issues of concern
6.Our approach to the most recent evidence session, on this occasion, was different. First, given our more general concern about the relationship between Parliament and government, we took a broader view of the issues we wished to raise. Second, given the range of questions we had, we also adopted a different approach to evidence gathering. We began by inviting written responses to fifteen questions (“the written evidence”), the answers to which then formed the basis of questions at the oral evidence session. The questions covered the following subject areas:
- The need for greater clarity about the threshold between primary and secondary legislation.
- Concern about the quality of legislation, and the absence of adequate evidence and other supporting information to underpin proposed policy changes.
- Lack of impact assessments for coronavirus instruments.
- Incomplete revocation of instruments and use of sunset provisions.
- Blurring of the distinction between legislation and guidance.
- The increasing use of skeleton bills.
- Restrictions on parliamentary scrutiny.
- The volume and flow of statutory instruments.
7.Finally, we invited members of the Delegated Powers and Regulatory Reform Committee (DPRRC) to join us. Later, on 12 May, the DPRRC held an oral evidence session with the Rt Hon. Jacob Rees-Mogg MP, Lord President of the Council and Leader of the House of Commons, to which members of the SLSC were invited.5
Further collaboration with the DPRRC
8.The SLSC and the DPRRC have complementary functions. The DPRRC scrutinises provisions in bills which confer powers on ministers6 to make secondary legislation. The SLSC is responsible for the scrutiny of the secondary legislation itself. There are therefore some issues about which the two Committees have overlapping interests, the principal one being the boundary between primary and secondary legislation and, within that, the use of skeleton bills and skeleton clauses (see paragraphs 30 to 42).
9.This commonality of interest prompted, in September 2020, a joint letter from the two Committees, along with the Constitution Committee, to the Rt Hon. Michael Gove MP, Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, and Mr Rees-Mogg, complaining about the use of skeleton bills. Mr Rees-Mogg’s response, along with further correspondence, has been very useful and we welcome his willingness to engage with the Committee.7
10.Following that joint correspondence and the shared evidence sessions, the SLSC and the DPRRC have continued to collaborate. As a result, we have been able, by sharing our findings, to develop some recommendations that fall within the common ground between us. For this reason, some of our recommendations refer to recommendations made by the DPRRC in its report, published in parallel with this report.8
End of session reports
11.It has been the practice of the SLSC to publish an annual report on the work of the Committee, including an analysis of issues of concern and statistical information. Usually, they are published as the final report of a session although, because of recent extended sessions, we have published interim reports as well. The most recent report was published at the end of April 2021.9 We welcome the suggestion made by the DPRRC in its parallel report that end of session reports by the SLSC and the DPRRC, along with relevant reports of the JCSI and the Constitution Committee, might form the basis for regular debates in the House on issues relating to the quality of legislation and supporting explanatory materials, and the wider issues raised in the reports.
Acknowledgements
12.We are grateful to the three Permanent Secretaries for their written and oral evidence. We would also like to thank members of the DPRRC for participating in our evidence session with the Permanent Secretaries and for inviting members of the SLSC to contribute to the evidence session with the Lord President. We further thank the DPRRC for joining us in adopting an innovative and collaborative approach in relation to the development of recommendations.
Structure of the report
13.In the remainder of the report, we will consider many of the subject areas listed above. Chapter 2 will focus on issues in which the DPRRC has a shared interest. Chapter 3 will focus on issues specific to the SLSC. The final chapter sets out a list of observations and recommendations made in this report. Appendix 1 sets out extracts from the Committee’s interim and end of session reports (Session 2019-21), and Appendix 2 lists the membership of the Committee (and members’ parliamentary experience).
1 This sort of primary legislation is sometimes called skeleton or framework legislation.
2 Acts of Parliament are primary legislation. Secondary legislation, also called delegated or subordinate legislation, usually takes the form of statutory instruments which are made by ministers (or other bodies) using powers conferred by an Act.
3 12 July 2016, 12 September 2017, and 21 November 2018. See, respectively, the following reports of the SLSC: 7th Report (Session 2016–17, HL Paper 32), p 14; 5th Report (Session 2017–19, HL Paper 20), p 5, and 43rd Report (Session 2017–19, HL Paper 248), p 1. The Committee had arranged to hold the fourth session earlier than April 2021, but this was postponed in March 2020 because of the pandemic.
4 The written evidence can be found on the Committee’s webpage: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/.
5 The transcript of the evidence session can be found on the Committee’s webpage: SLSC, Corrected oral evidence: Departmental support of secondary legislation (21 April 2021): https://committees.parliament.uk/oralevidence/2063/default/.
6 Acts of Parliament confer delegated powers on ministers and other bodies or individuals. For simplicity, in this report we refer only to ministers.
7 The correspondence can be found on the Committee’s webpage: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/3/correspondence/.
8 We refer in this report to the DPRRC’s report as “the DPRRC’s parallel report”.
9 SLSC, 54th Report (Session 2019–21, HL Paper 276). An interim report was published in December 2020. SLSC, 39th Report (Session 2019–21, HL Paper 200). Extracts of the executive summaries of the two reports are set out in Appendix 1 to this report.