End of Session Report 2021–22
Introduction
1.The Secondary Legislation Scrutiny Committee (SLSC) considers all secondary legislation that is subject to a parliamentary procedure and advises the House of any concerns through weekly reports. This report provides an overview of the Committee’s work in session 2021–22: Part 1 highlights the key themes and concerns that arose during the session (paragraphs 7 to 47) and Part 2 provides a statistical overview (paragraphs 48 to 68).
2.Session 2021–22, which started in May 2021 and lasted for 12 months, saw a reduction in the volume of secondary legislation dealing with the coronavirus pandemic, with a total of 126 statutory instruments (SIs), down from 379 in the longer 2019–21 session which lasted 16 months. While the number of coronavirus instruments may have fallen, those considered included several significant policy measures, such as legislation to require those working in the NHS or social care to be vaccinated against COVID-19. The overall number of instruments we scrutinised also fell to 666, from 1,227 in session 2019–21.
3.Whilst the principal focus of our work is on the scrutiny of the several hundreds of instruments laid before Parliament each session, from time to time we undertake thematic inquiries on issues relating to secondary legislation more generally. In session 2021–22, working in close collaboration with the Delegated Powers and Regulatory Reform Committee (DPRRC), we considered the fundamental issue of the relationship between Parliament and the executive. Both Committees concluded that the delegation of power to the executive had gone too far, and that there was an urgent need for the balance of power between Parliament and the executive to be re-set.
4.In November 2021, we published our thematic report, entitled Government by Diktat: A call to return power to Parliament,1 published in parallel with DPRRC’s report Democracy Denied? The urgent need to rebalance power between Parliament and the Executive.2 In our report, we joined forces with the DPRRC in asserting: the critical importance of the appropriate balance between primary and secondary legislation as the foundation of the relationship between Parliament and the executive; the need to place the principles of parliamentary democracy (namely, parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament) at the centre of ministerial decisions about the delegation of legislative powers in primary legislation; the need for restrictions on the use of skeleton bills and clauses, and for any legislative sub-delegation of power in secondary legislation to be fully explained in the Explanatory Memorandum (EM) accompanying an instrument containing the power.
5.We also made recommendations and observations about issues of specific concern to the SLSC. These included issues relating to: the proper use of secondary legislation and guidance, the blurring of boundaries between the two, inconsistencies between secondary legislation and its related guidance, and the use of guidance to fill gaps in legislation; the provision of Impact Assessments (IAs) or, where not formally required, of material in the EM accompanying an instrument to enable the effect of the instrument to be understood; the use of sunset provisions; and, effective parliamentary scrutiny of secondary legislation, breaches of the 21-day rule and the use of made affirmative instruments.
6.On 6 January 2022, Baroness Cavendish of Little Venice initiated a debate in the House of Lords on the use of skeleton bills and delegated powers. Issues raised by the reports of the SLSC and the DPRRC were central to the debate. The Government response was less supportive. The Government responded to our report on 24 January 2022,3 and disappointingly almost all recommendations were rejected. But, despite this or because of it, our commitment to pursuing these matters remains undaunted and, continuing our collaborative approach with the DPRRC, we anticipate undertaking further work in the forthcoming session including discussion with interested Members of the House of Commons.
1 SLSC, Government by Diktat: A call to return power to Parliament (20th Report, Session 2021–22, HL Paper 105).
2 Delegated Powers and Regulatory Reform Committee, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive (12th Report, Session 2021–22, HL Paper 106).
3 Lord President of the Council and Leader of the House of Commons, Government response to the Secondary Legislation Scrutiny Committee’s Twentieth Report of the Session 2021–22 ‘Government by Diktat: A Call to Return Power to Parliament’ (24 January 2022): https://committees.parliament.uk/publications/8704/documents/88287/default/ [accessed 26 April 2022].