Summary of conclusions and recommendations
Chapter 1: Introduction
1.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. (Paragraph 2)
End of session reports
2.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 by 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. (Paragraph 11)
Chapter 2: Shared concerns of the SLSC and DPRRC about primary legislation
Threshold between primary and secondary legislation
3.As we said in our introduction, we believe, like the DPRRC and others, that a critical moment has been reached when it is imperative that efforts are made to re-set the relationship between Parliament and the executive—and not to how it was immediately before Brexit and the pandemic but afresh, to reflect the modern conditions of government. (Paragraph 15)
4.In our report on the Strathclyde Review, we concluded that: “The boundary between primary and secondary legislation is the foundation of any consideration of the scrutiny by Parliament of secondary legislation”. We remain of that view. The more that is left to secondary legislation, the greater the democratic deficit because of the absence of robust procedures enabling effective parliamentary scrutiny of secondary legislation. (Paragraph 23)
5.We are concerned that the underlying challenge to the balance between Parliament and government is not primarily attributable to the impact of “exceptional times” such as Brexit and the pandemic, as the Permanent Secretaries appeared to assert, but is instead the result of a general strategic shift by government. (Paragraph 24)
6.We endorse the DPRRC’s recommendation that the Cabinet Office Guide to Making Legislation be amended to include a statement of principles which should govern any decision by ministers about whether a bill should include delegated legislative powers. The statement should require ministers, when seeking a delegation of legislative power, to take into account to the fullest extent possible the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament. (Paragraph 29)
Skeleton legislation
7.As the DPRRC states in its parallel report, skeleton legislation signifies an exceptional shift in power from Parliament to the executive and entails the Government, in effect, asking Parliament to pass primary legislation which is so insubstantial that it leaves the “real operation” of the law to be decided by ministers “on the hoof”. We endorse the DPRRC’s view that skeleton legislation should only be used in the most exceptional circumstances and that, where used, a department should always provide a full justification, including an explanation of the “most exceptional circumstances”, why no other approach was reasonable to adopt and how the scope of the skeleton provision is to be constrained. (Paragraph 35)
8.The consequences of a declaration—or a finding—that a bill is a skeleton bill (or contains skeleton clauses) need, however, to go well beyond second reading. Skeleton bills or skeleton clauses, by their very nature, cannot be adequately scrutinised during their passage through Parliament. Accordingly, if skeleton legislation is to be enacted, there should, at the very least, be statutory safeguards in place to ensure that the lack of parliamentary scrutiny at the primary legislation stage is recompensed by a more challenging scrutiny procedure at the secondary legislation stage. (Paragraph 40)
9.We recommend that the Government, together with the two Houses of Parliament and their Procedure Committees, should consider (a) adopting procedures for determining whether legislation is skeleton legislation and, (b) what the consequences of any such determination should be, in terms of scrutiny of such legislation and any statutory instruments made under powers contained in it. (Paragraph 43)
Legislative sub-delegation of power
10.We endorse the recommendation of the DPRRC that where a statutory instrument contains a delegation of power, the accompanying explanatory memorandum should state clearly, under a separate heading, that this is the case, with a full explanation of why the power is needed and its scope. (Paragraph 46)
Chapter 3: Issues of concern to the SLSC about secondary legislation
Secondary legislation and guidance
11.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. (Paragraph 59)
Quality of legislation and supporting information
12.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. We welcome the steps that the Government have taken, despite those challenges, to improve the quality of legislation and supporting information. (Paragraph 63)
13.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. (Paragraph 64)
Senior Responsible Owners
14.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. (Paragraph 66)
Impact assessments for coronavirus instruments
15.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. (Paragraph 71)
Sunset provision
16.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. 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. (Paragraph 73)
Restricting parliamentary scrutiny
17.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. 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. 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. (Paragraph 76)
Looking ahead: volume and flow of statutory instruments
18.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. (Paragraph 79)