Chapter 3: Issues of concern to the SLSC about secondary legislation
Secondary legislation and guidance
Blurring of the boundary
47.In its parallel report, the DPRRC identifies three principal forms of guidance: pure guidance (guidance which simply assists but does not direct), guidance which the law requires those to whom it is directed “to have regard to” and mandatory guidance (guidance which must be complied with).40 The second and third of these may be said to have legislative effect. The Committee also lists a number of other devices used in primary legislation which can similarly be said to be legislative in effect (and gives examples of what it describes as “disguised legislative instruments”).41 The DPRRC suggests that the multiplicity of legislative devices is confusing to Parliament and the public, and makes a number of recommendations intended to improve the clarity of primary legislation and to increase the role of Parliament in scrutinising the exercise of these legislative powers.
48.In our interim report on the work of the Committee, published in December 2020, and again in our end of session report in April 2021,42 we highlighted another issue relating to guidance, namely the blurring of the boundary between secondary legislation and guidance and, in particular, the way in which, on occasion, guidance which is advisory only has been presented as if it were stating the law as set out in secondary legislation:43
“Quite early on in the pandemic, we drew to the attention of the House the need for a clear distinction between legislation and guidance. For example, guidance for the first lockdown said that “only one form of exercise a day” was allowed, whereas the legislation did not limit it in this way. In our 13th Report, we published an exchange of correspondence with the Secretary of State for Health and Social Care, the Rt Hon. Matt Hancock MP, who confirmed that it was the instrument and not the guidance which was legally enforceable.”
49.We remain concerned that the distinction between legislation and guidance continues to be unclear. In our 35th Report, on an exemption to the travel restrictions to allow foreign poultry workers into the country, we noted that guidance said that the employer should provide a translation of the local lockdown restrictions and the worker should sign to say that he or she had understood them, but this provision was not included in the regulations.44
50.In a report published in July 2021, entitled Rule of Law Themes from COVID-19 Regulations, the JCSI also expressed concern that “guidance has been used in the context of the pandemic response in a way that appears to attempt to impose more severe restrictions than are imposed by law, by presenting the guidance to the public as if it were law that compelled compliance”,45 and that “there appears to have been an unwillingness to distinguish between the wishes of Government expressed informally or in guidance and the requirements of the law, which has been a feature of the Government’s response to the coronavirus pandemic despite this issue having been raised by parliamentary Committees at various stages in 2020 and 2021”.46 The issue was also raised by the Constitution Committee in its report, published in June 2021, entitled COVID-19 and the use and scrutiny of emergency powers,47 and by the House of Commons Justice Committee in its report, published in September 2021, entitled Covid-19 and the criminal law..48
51.We note in passing that in our 2nd Report of the current session, we drew special attention to the Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England) (No. 2) Order 2021 (SI 2021/548) as an example of an instrument the statutory guidance on which described the legal requirements in terms which appeared to be less strict than the order itself:49
“We note that there appears to be an inconsistency between the provisions in the Order which make it an offence to allow common pheasants and red-legged partridges to escape into protected areas in England without a licence, and the statutory guidance which states that any activity “must not encourage the released birds to inhabit or occupy an adjacent European site”. We take the view that the statutory guidance appears to offer a more realistic approach to the not inconsiderable challenges of trying to prevent the movement of gamebirds in the wild. The mismatch between the provisions in the Order and the statutory guidance again raises concerns about the relationship between guidance and legislation which we have expressed repeatedly before.”
52.In a letter to the Lord President, dated 18 January 2021,50 we said: “… this confusion between legislation and guidance is directly contrary to the idea of accessible and clear law, and falls short of the legislative standards which Parliament and the public are entitled to expect”. The JCSI, in its report, made a similar point:51
“The rule of law requires a clear distinction to be made between non-statutory guidance and requirements imposed by law. Whereas non-statutory guidance may influence, the law requires compliance. Law-enforcement officials and other public authorities have neither the duty nor the right to apply or enforce guidance as if it were the law.
In the context of the pandemic, where regulations came into force with little or no time to prepare for the new restrictions and where new regulations were made relatively frequently, it was even more important for the guidance to clearly delineate between what was mere advice and what was a legal requirement.”
53.The Office of Parliamentary Counsel (OPC) states that it is committed to promoting “good law” which it defines as law that is “necessary, clear, coherent, effective and accessible”. We emphatically endorse this definition and the OPC’s aim of “making legislation more accessible and understandable for UK citizens”.52
54.In a report entitled The Government’s response to COVID-19: Human Rights Implications, published on 21 September 2020, the Joint Committee on Human Rights, said: “More care must be taken by the Government to distinguish between advice, guidance and the law, in media announcements as well as in official online sources”.53 In response, the Government said: “The Government continues to review guidance online and ensure that it is up to date, and accessible so the public are able to interpret it correctly. This includes ensuring that guidance clearly distinguishes between Government advice and what measures people are legally required to follow”.54 In response to our letter, the Lord President said that he would ask officials to remind departments of “the importance of clarity when legislation is being supplemented by guidance”.
55.This confusion between legislation and guidance is important. In oral evidence to the DPRRC, the Lord President acknowledged this: “… I very strongly agree with your point that guidance is guidance, and the law is the law. The Government should not give the impression that they can make law by guidance, because they cannot, and no British subject has any obligation to follow non-law”.55 The matter goes to the heart of the principle of the rule of law and the integrity of the statute book, and we agree with the JCSI that “where control is thought necessary, it must be achieved through legislation and not be brought through the back door by way of quasi-legislation presented as if it were actual legislation”.56
Use of guidance “to amplify legislation”
56.We have also raised concerns about important elements of a policy change being left to guidance rather than being included in the relevant statutory instrument.57 One example is provided by the Heather and Grass etc. Burning (England) Regulations 2021 (which also demonstrated the uncertainties that arise when key aspects of a decision-making process are to be set out in guidance that is not available, even in draft form, when regulations are being scrutinised). Another example is the Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 which left a key definition—the meaning of “critical worker”—to guidance. We advised that “[t]he House may wish to ask for the definition to be reviewed urgently and included in regulations so that it can be subject to scrutiny by Parliament”.58
57.In a report published in November 2018 on the delegation of powers, the Constitution Committee concluded: “Bills and statutory instruments should be sufficiently clear to ensure that guidance need not be relied on to interpret legislation. Guidance is not legislation and should not be treated as such. If there are policy lacunae in the legislation itself, it is unacceptable that guidance, which for the most part avoids parliamentary scrutiny, should serve to fill them”.59 We alluded to this in our letter to the Lord President of 18 January. In reply, the Lord President said that he understood the point that “legislative provisions should generally be found within the body of the legislation, rather than in guidance”, and that failure to do this is detrimental to the accessibility of the law and raises difficulties for parliamentary scrutiny. The Government response to the Constitution Committee report, published in January 2019, made a similar point: “The Government agrees that guidance should not generally be used for the purposes of interpreting legislation and, in particular, that it should not stand in the place of anything that should be contained in legislative provision subject to appropriate scrutiny (in particular, provision that has the effect of imposing legal requirements)”.60
58.The JCSI, in its Rule of Law Themes from COVID-19 Regulations report, also refers to what it describes as the “purported use of guidance to amplify legislation”:61
“A key element of the rule of law is for legislation to be clear. Where legislation has been drafted so as to leave gaps in the law or areas of uncertainty, guidance (and particularly non-statutory guidance) cannot be used to fill those gaps as if it were the law itself.
Where the enabling power permits, guidance can be expressly referred to in legislation to provide elucidation on meaning. Care should be taken in such situations to ensure that there is tight correspondence between the legislation and guidance. However, where the enabling power does not permit it, Departments cannot add to the law by referring informally to guidance. Such guidance has not undergone parliamentary scrutiny and has no place in amplifying the law.”
59.Concern about the proper use of secondary legislation and guidance–in particular, inconsistencies between legislation and guidance, and the use of guidance to fill gaps in legislation–is widespread, particularly in relation to pandemic regulations. We expect to see fewer examples of poor practice in this regard and recommend that departments make every effort to ensure that a clear and appropriate distinction between legislation and guidance is maintained.
Quality of legislation and supporting information
60.Issues under this heading have been the long-standing concern of the Committee and prompted our regular meetings with the Permanent Secretaries. Inevitably, given both the volume of secondary legislation required in relation to the COVID-19 pandemic and the rapidity with which it had to be brought into effect, the focus of our questions this year was on the impact of the pandemic on the quality of legislation and supporting information.
61.In their written evidence, the Permanent Secretaries acknowledged that “the time for drafting and checking the legislation and explanatory material was often squeezed” and that it was “unfortunately inevitable that from time to time necessary refinements to the policy are identified after the event, requiring correction at a later date, or supporting materials may not be of the quality the Government would normally be able to deliver when there is more time for quality assurance processes”.62 They also acknowledged that the exceptional circumstances of the pandemic did not provide a complete justification for recent lapses and that there were still “lessons to be learnt and progress to be made, especially in relation to explanatory memoranda”.
62.Ms McGibbon, the Treasury Solicitor, said in her oral evidence in April 2021 that, although there had been no formal review of the emergency legislation produced in response to the pandemic, they had kept practices under review as they went along. She drew attention to two areas of particular concern: “the limited opportunities for parliamentary scrutiny of the legislation” (see paragraphs 74 to 76 below) and “the increased risk of errors as a result of the speed at which we are developing policy and legislation”.63 With regard to the latter, Ms McGibbon said that the pandemic had placed significant pressure on a small group of drafting lawyers. Her department had responded to this by redeploying other departmental lawyers to support the drafting lawyers. As a result, she said, the quality of legislation had “held up pretty well”.64 Ms Finkelstein, Head of the Civil Service Policy Profession, provided a longer-term view about how improvements would be made, referring to training, a monthly newsletter to civil servants which included issues raised by the SLSC, and a revamping of the explanatory memorandum template.
63.In our end of session 2019–21 report, we acknowledged the twin challenges of Brexit and the pandemic and recognised the achievements of the many civil servants who have had to respond to the exceptional demands of the current period.65 We welcome the steps that the Government have taken, despite those challenges, to improve the quality of legislation and supporting information.
64.Now that the UK has withdrawn from the EU and the pandemic restrictions have eased, we look forward to seeing an acceleration in these improvements, including any that may result from a review of the delivery of the emergency legislation produced in response to the pandemic.
Senior responsible owners (SROs)
65.Both the written evidence of the Permanent Secretaries66 and the oral evidence of Ms Finkelstein and Ms McGibbon emphasised the role of the departmental SRO for secondary legislation–established in 2017–as being central in the drive to improve standards. The function of an SRO is to have oversight of their department’s secondary legislation and to “champion and raise the profile of secondary legislation, including ensuring all relevant staff have the skills to engage with secondary legislation and Parliament”.67 We were told that the PBL Committee coordinates regular meetings so that SROs can share best practice across Whitehall, and that they “play a vital role in ensuring the quality of EMs”.68 (We explored the role of SROs further in an evidence session with the Department for Transport on 19 October.)69
66.Following the oral evidence session with the Permanent Secretaries, we were provided, at our request, with a list of departmental SROs, for the purpose of developing contacts between the Committee and SROs. We regard this as a welcome development, to the advantage of the SLSC and departments alike in pursuing the aim of improving the quality of secondary legislation.
Impact assessments
Coronavirus instruments
67.We asked the Permanent Secretaries about the number of occasions on which coronavirus instruments were not accompanied by adequate information about their potential impact. In written evidence, they said that “a pragmatic and proportionate approach” had to be taken in the face of a national emergency, and that sometimes the impact information could be found in associated documents (such as in published Scientific Advisory Group for Emergencies (SAGE) documents). In oral evidence, Ms Finkelstein conceded that, if the information is to be easily accessible, it should be included in the explanatory memorandum but repeated that the exigencies of the pandemic had made this difficult.70
68.The issue came to the fore in the Committee’s consideration of the draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 which made it mandatory for anyone working inside a care home, including tradespeople and service providers, to be fully vaccinated against coronavirus unless subject to medical exemption. We were critical of the quality of the explanatory material including, amongst other things, the lack of any analysis of the impact on care homes. As a result, we took the exceptional step of inviting the Minister, Nadhim Zahawi MP, to give oral evidence during which he acknowledged that impact material should have been available alongside the instrument when it was laid.71 The instrument was subsequently the subject of a regret motion, debated on 20 July 2021, in the name of Baroness Wheeler. The motion included reference to the absence of an impact assessment and was agreed by 221 votes to 211.
More generally
69.We have a long-standing concern about the provision of impact information. It is fundamental to the ability of the Committee and of Parliament to scrutinise secondary legislation effectively and to understand the range of alternative policy options available to departments and their consequences. Impact assessments also have the potential to offer reassurance in that they may, depending on their quality, demonstrate a department’s evidence base for decisions taken. It is disappointing therefore that issues relating to the provision of timely impact assessments continue to arise, the most recent example being the failure to provide important impact information in relation to the draft Motor Vehicles (Driving Licences) (Amendment) (No.2) Regulations 2021. Those regulations were intended to help to ease the current shortage of HGV drivers. We drew attention to the fact that the department would not be providing Parliament with information on potential safety risks until sometime after the regulations had been approved by Parliament and come into effect.72
70.The credibility of a proposed policy change–which translates into the ease or otherwise with which an instrument passes through Parliament–is dependent on the provision of convincing evidence to support the change and evidence to demonstrate departmental due diligence in reaching its choice of policy. This is provided in part by an impact assessment or other impact information. It is also supported by the adequacy of any consultation exercise. Evidence, however, is all the more convincing if it is independent. We are aware, for example, that the Social Security Advisory Committee, an independent statutory advisory body, scrutinises secondary legislation relating to the social security system. Other departments may, or should, rely on other sources of expertise.73
71.As we have indicated in relation to the quality of secondary legislation and supporting information, the exceptional demands of the twin challenges of Brexit and the pandemic provide some explanation for a fall in standards but, as those challenges abate, departments and their SROs must ensure that: (a) where an instrument requires a full impact assessment, that assessment is always laid at the same time as the instrument; and (b) where an instrument does not require a formal impact assessment, the explanatory memorandum contains sufficient information to enable the effect of the instrument to be understood. In addition, we encourage departments to consider how independent validation of their policy choices can be demonstrated. This should also be described in full in the explanatory memorandum and should include a thorough description of any consultation exercise.
Sunset provision
72.Sunset provision is included in a statutory instrument to time limit the period during which the instrument remains in effect by setting an automatic expiry date. In written evidence, we were told that the Government had moved away from using such provision. Ms McGibbon explained that sunset provision was one of a “range of tools” used to make secondary legislation proportionate. An alternative tool was the inclusion of a statutory review. The choice is, she said, a matter for departments and ministers.74 Ms Finkelstein was asked about the variety of different sunset provisions and the confusion they might cause. She too stated that responsibility rested with departments which, she added, were required to monitor the things that they had committed to.75
73.Sunset provision in secondary legislation has the advantage of clarity and transparency and encouraging departments to remain vigilant about ensuring that regulations do not continue to apply when they are no longer needed.76 We were not convinced by the answers we received in evidence about why sunset provision is not used more often as a matter of good practice and what alternative arrangements are in place to ensure legislative good housekeeping. We would welcome further explanation.
Restricting parliamentary scrutiny
74.We have raised the issue of the significant proportion of pandemic instruments which came into effect within 48 hours of being laid, some instruments coming into effect even before they were laid. The JCSI, in its Rule of Law Themes from COVID-19 Regulations report, also mentioned this point:77
“It is only to be expected that the pandemic has required legislation to be made and brought into force at speed, as the Government has been forced to respond to the fast-changing facts on the ground and to take proactive steps to prevent damage from escalating further. This is reflected in the fact that as of 5 July 2021, of the 461 coronavirus instruments laid before Parliament: 87 were made using the urgent made affirmative procedure under section 45R of the Public Health (Control of Disease) Act 1984; 188 (of 327 coronavirus instruments made using the negative procedure) breached the convention that an instrument should not come into force until at least 21 days after being laid; and 54 came into force before being laid, triggering the requirement under section 4 of the Statutory Instruments Act 1946 to notify the Speaker and the Lord Speaker of the early commencement and why it was necessary. Moreover, several of the made affirmative instruments were revoked before they had even been debated.”
75.In written evidence, the Permanent Secretaries referred to the fast-moving and urgent nature of the pandemic which had necessitated the use of the “made affirmative” procedure (whereby an affirmative instrument is made before laying and will remain in force only if approved by both Houses within a statutory period78) and bringing negative instruments into force before the expiry of the 21-day period set by convention. They also drew attention to how, in the light of concerns expressed in Parliament, the Government had made a commitment to hold debates on affirmative instruments in advance of them coming into force whenever possible on matters of national significance. And they said that the Government were committed to complying with the 21-day convention “as far as possible”.79 In oral evidence, Ms McGibbon gave a similar response.80
76.As we said in our end of session 2019–21 report, while the pandemic may have provided a justification for some instruments to be subject to an accelerated timetable, this was not the case for all instruments that were dealt with in this way—including some pandemic-related instruments.81 We repeat our view that parliamentary scrutiny should not be curtailed save in exceptional circumstances and with a full justification clearly set out in the explanatory memorandum.82 We are aware of the DPRRC’s concerns about the use of the made affirmative procedure—that it enables significant policy change without prior parliamentary approval—and we support the DPRRC’s recommendation that consideration should be given as to whether it would be feasible to hold a debate at an early stage and for the approval motion to be taken later, either formally or as a second debate if either the SLSC or the JCSI raises matters of concern.
Looking ahead: volume and flow of statutory instruments
77.The withdrawal of the UK from the EU gave rise to an exceptional number of statutory instruments, one practical consequence of which was that the Committee, for a period, split into two sub-committees and co-opted 11 additional members in order to deal with the number of instruments. The pandemic has also led to a large volume of secondary legislation.
78.We therefore welcome the written evidence of the Permanent Secretaries that, now that the UK has withdrawn from the EU, they “… anticipate returning to business as usual with the exception of COVID-19 SIs which, naturally, the Government will need to respond to as the situation evolves and on which we continue to provide regular updates. There is no indication that there is a backlog of “business as usual” SIs as more than half of the SIs made in the last three years have been business as usual”.83
79.We valued the information provided by the Government to us about anticipated numbers of instruments during the height of the Brexit-related secondary legislation. We look forward to that practice continuing so that Parliament and departments can together support the public interest in properly scrutinised legislation.
40 See Craies on Legislation, 11th edition (Sweet & Maxwell, 2017), pp 165–9, for further analysis of different types of guidance.
41 These include, for example, a power to make to a determination under provision in the Housing and Planning Bill (Session 2015–16), a power to give directions under provision in the Education and Adoption Bill (Session 2015–16) and a power to issue a code of practice under provision in the Digital Economy Bill (Session 2016–17). See the DPRRC’s parallel report, para 101.
42 See footnote 9 above and Appendix 1 to this report.
43 SLSC, Interim report on the Work of the Committee in Session 2019–21 (39th Report, Session 2019–21, HL Paper 200), paras 20–21.
44 SLSC, 35th Report (Session 2019–21, HL Paper 177).
45 JCSI, Rule of Law Themes from COVID-19 Regulations, (1st Special Report, Session 2021–22, HC 600, HL Paper 57), para 40.
46 JCSI, Rule of Law Themes from COVID-19 Regulations, (1st Special Report, Session 2021–22, HC 600, HL Paper 57), para 42.
47 Constitution Committee, COVID-19 and the use and scrutiny of emergency powers (3rd Report, Session 2021–22, HL Paper 15), Chapter 4.
48 House of Commons Justice Committee, Covid-19 and the criminal law (4th Report, Session 2021–22, HC 71).
49 SLSC, 2nd Report, (Session 2021–22, HL Paper 7), para 6.
50 The letter of 18 January 2021 and the Lord President’s reply of 17 February 2021 are published on our webpage.
51 JCSI, Rule of Law Themes from COVID-19 Regulations, (1st Special Report, Session 2021–22, HC 600, HL Paper 57), paras 45 and 46.
52 Office of the Parliamentary Counsel, ‘About Us’: https://www.gov.uk/government/organisations/office-of-the-parliamentary-counsel/about [accessed 10 November 2021].
53 JCHR, The Government’s response to COVID-19: human rights implications (7th Report, Session 2019–21, HC 265, HL Paper 125), recommendation 2.
54 JCHR, The Government’s Response to the Joint Committee on Human Rights Report: The Government’s Response to COVID-19: Human Rights Implications, CP 335 (December 2020): https://committees.parliament.uk/publications/4154/documents/41106/default/ [accessed 16 November 2021].
56 JCSI, Rule of Law Themes from COVID-19 Regulations, (1st Special Report, Session 2021–22, HC 600, HL Paper 57), para 47.
57 SLSC, 48th Report (Session 2019–21, HL Paper 242).
58 SLSC, 41st Report (Session 2019–21, HL Paper 210), para 11.
59 Constitution Committee, The Legislative Process: the Delegation of Powers (16th Report, Session 2017–19, HL Paper 225), para 81.
60 Constitution Committee, The Government Response to the Lords Constitution Committee Report: The Legislative Process: The Delegation of Powers (25 January 2019): https://www.parliament.uk/globalassets/documents/lords-committees/constitution/Correswithministers/250119-Government-response-to-Leg-Process-Report.pdf [accessed 16 November 2021].
61 JCSI, Rule of Law Themes from COVID-19 Regulations (1st Special Report, Session 2021–22, HC 600, HL Paper 57), paras 55–56.
65 SLSC, Work of the Committee in Session 2019–21 (54th Report, Session 2019–21, HL Paper 276), para 27.
69 The transcript can be found on the Committee’s webpage: https://committees.parliament.uk/oralevidence/2844/html/. See also SLSC, 17th Report (Session 2021–22, HL Paper 88), paras 25–34.
71 SLSC, 10th Report (Session 2021–22, HL Paper 50).
72 SLSC, 15th Report (Session 2021–22, HL Paper 79), para 5.
73 Social Security Administration Act 1992, section 172.
76 See HM Government, Sunsetting Regulations: Guidance (March 2011): http://data.parliament.uk/DepositedPapers/Files/DEP2011–0504/DEP2011–0504.pdf.
77 JCSI, Rule of Law Themes from COVID-19 Regulations, (1st Special Report, Session 2021–22, HC 600, HL Paper 57), para 59.
78 28 days for COVID-19 instruments.
81 See, for example, SLSC, 9th Report (Session 2021–22, HL Paper 45), paras 9–11, on the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2021 (SI 2021/775), and SLSC, 17th Report (Session 2021–22, HL Paper 88), pp 7–24, on the Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 16) Regulations 2021 (SI 2021/1179).
82 SLSC, Work of the Committee in Session 2019–21 (54th Report, Session 2019–21, HL Paper 276), para 13.