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What next? The Growing Imbalance between Parliament and the Executive: End of Session Report 2021–22 Contents

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Part 2: Activity during session 2021–22

Overview

48.In session 2021–22, we met 36 times and published 38 reports (including this one). We considered 666 instruments,44 of which 192 (29%) were subject to the affirmative procedure and 474 (71%) to the negative procedure.45 While the proportion of affirmative instruments was lower than in the last session (33%), it still remained well above the average 20% we would expect in a normal year. We also considered 27 proposed negative instruments and published drafts, as part of our pre-legislative scrutiny function under the European (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020 (see paragraphs 56 to 59 below).

Instruments drawn to the special attention of the House

49.Of the 666 SIs considered, we drew 38 (5.7%) to the special attention of the House. (This was below our annual average of about 7% but may be accounted for in part by the comments we made in a separate section of our weekly report on pandemic-related SIs; under normal circumstances, we would have drawn some of these SIs to the special attention of the House due to their policy significance or impact.) Of the 38 instruments:

• 28 (74% of all reported SIs) were reported on the ground of policy interest, although some these reports also incorporated questions about the implementation of the policy or its cost. (9 instruments (24% of all SIs reported) were from DfT which has had a challenging year in terms of its programme of secondary legislation.))
• 10 instruments (26% of all reported SIs) were reported on the ground of inadequate explanation, with two of those also having been reported on the additional ground that they may imperfectly achieve their policy objective: the Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England) (No. 2) Order 2021 (SI 2021/548)46 and the Universal Credit and Jobseeker’s Allowance (Work Search and Work Availability Requirements - limitations) (Amendment) Regulations 2022 (SI 2022/108).47
• The proportion of instruments reported for their poor explanation (26%) was greater than in previous sessions: it compares to 8% in session 2019–21, and 7% in session 2017–19. The relevant SIs were laid by different departments, and most were unrelated to the pandemic. Our critical reports on these instruments therefore underpin the conclusions about the quality of the material presented for scrutiny set out in Part 1 above.

Chart 1: Reported instruments by department

Strands of activity

50.The levels of activity in the three main strands of secondary legislation have changed significantly since our last end of session report: (1) EU Exit legislation is now mainly corrections and updates; (2) COVID-19 legislation decreased by two-thirds as pandemic restrictions were lifted; and (3) “business as usual” (BAU) activities now dominate. Chart 2 shows the proportion of these three strands over the session.

Chart 2: Total SIs for the session 2021–22

51.Chart 3 shows the flow of the different types of instruments over the session, and the way that pandemic SIs began to decline from the first quarter of 2022.

Chart 3: BAU v EU Exit v Covid-19 SIs for session 2021–22

Information paragraphs

52.As well as reporting instruments to the House under our terms of reference,48 we also offer a sort of “news service”. To that end, we published 126 information paragraphs in session 2021–22 on 154 instruments which were topical, followed an unusual procedure or related to a bill in progress.

53.Continuing the practice established at the start of the pandemic, we also published an information paragraph on every SI relating to COVID-19, irrespective of its significance (in addition to those to which we drew the special attention of the House). We published 119 information paragraphs on 126 instruments relating to COVID-19 (49% of the total number of 245 information paragraphs that we published in this session). Many of these information paragraphs included clarifications or additional information that we obtained from departments.

Use of “coronavirus” in the title of statutory instruments

54.In session 2019–21, we commented that the Government were inconsistent in their use of the word “coronavirus” in the title of pandemic-related instruments. When listing SIs on the part of our website that deals with such legislation,49 we are guided by the content of an instrument rather than the title. In our last end of session report, we found that approximately 15% of those SIs listed did not have the word “coronavirus” in their title. This has continued in the current session, so that a simple search of SIs with “coronavirus” in the title would not provide a list of all the relevant legislation. We take the view that it would have been helpful and more transparent for the Government to use “coronavirus” in the title of all instruments that were laid to deal with the pandemic–this would have provided a more comprehensive picture of the wide range of measures needed to address the many challenges arising from the pandemic.

Table 1: Instruments considered and reported by Department in Session 2021–22

Department	Total laid	%	Affirmative SI reported	Negative SI reported	Reason for report50
					a	b	c	d	e	f
Attorney General’s Office	1	0.15	0	0	0	0	0	0	0	0
Department for Business, Energy & industrial Strategy	65	9.76	3	1	4	0	0	0	0	0
Cabinet Office	9	1.35	0	0	0	0	0	0	0	0
Department for Digital, Culture, Media & Sport	13	1.95	0	0	0	0	0	0	0	0
Ministry of Defence	3	0.45	0	0	0	0	0	0	0	0
Department for Environment, Food & Rural Affairs	58	8.71	3	4	6	0	1	1	0	0
Department for International Trade	2	0.30	0	0	0	0	0	0	0	0
Department for Work & Pensions*	62	9.31	0	1	0	0	1	1	0	0
Department for Education	33	4.95	0	2	2	0	0	0	0	0
Foreign, Commonwealth & Development Office**	21	3.15	0	0	0	0	0	0	0	0
Government Equalities Office	0	0.00	0	0	0	0	0	0	0	0
Department of Health & Social Care***	87	13.06	4	3	4	0	0	3	0	0
Home Office	52	7.81	0	1	0	0	0	1	0	0
Ministry of Justice	37	5.56	0	1	1	0	0	0	0	0
Local Government Boundary Commission for England	21	3.15	0	0	0	0	0	0	0	0
Department for Levelling Up, Housing & Communities****	52	7.81	0	6	5	0	0	1	0	0
Northern Ireland Office	4	0.60	0	0	0	0	0	0	0	0
Privy Council	0	0.00	0	0	0	0	0	0	0	0
Scotland Office	11	1.65	0	0	0	0	0	0	0	0
Department for Transport	75	11.26	3	6	6	0	0	3	0	0
HM Treasury*****	60	9.01	0	0	0	0	0	0	0	0
Wales Office	0	0.00	0	0	0	0	0	0	0	0
Total	666		13	25	28	0	2	10	0	0

* Includes Health and Safety Executive.

** Previously the Foreign and Commonwealth Office.

*** Includes Food Standards Agency.

**** Previously the Ministry of Housing, Communities and Local Government.

***** Includes HM Revenue & Customs.

Volume and flow

55.The departments which laid the largest numbers of instruments in session 2021–22 were DHSC with 87 instruments (13% of all SIs), DfT with 75 SIs (11%), and the Department for Business, Energy and Industrial Strategy (BEIS) with 65 SIs (10%). These three departments accounted for a third of all instruments laid (see Table 1 above). While the Government’s system of filtering all SIs through its Parliamentary Business and Legislation Committee helped to manage the flow of instruments during this challenging session, there were some peaks and troughs of activity.

Chart 4: SIs laid by Month session 2021–22

Pre-legislative scrutiny of instruments dealing with Brexit

56.Following the UK’s withdrawal from the EU, we have been providing a sifting function in the House of Lords for Proposed Negatives (PNs) laid under the European Union (Withdrawal) Act 2018 (“the 2018 Act”). The volume of PNs has reduced significantly, however, and we considered only 15 PNs of this type during this session: we agreed that the negative procedure was appropriate for all of them and so made no recommendations to upgrade to the affirmative procedure.

57.A similar PN sifting procedure was introduced under the European Union (Future Relationship) Act 2020 (EUFRA). This is intended to be used to implement the Trade and Cooperation Agreement, the Nuclear Cooperation Agreement, the Security of Classified Information Agreement or any relevant agreement with the EU. We received our first EUFRA PN just before the end of the session. Although its intent was a simple correction, there were legal concerns about whether the negative procedure was appropriate in the circumstances.51

58.An additional procedure that came into use during this session is the “published draft” mechanism under paragraph 14 of Schedule 8 to the 2018 Act. This applies to instruments that amend or revoke secondary legislation made under section 2(2) of the European Communities Act 1972. (Most Directives were transposed into domestic law under that Act.) Published drafts are subject to a two-stage scrutiny process:

• First, the proposed instrument must be published as a draft for at least 28 days to allow for comment, whether by a committee of either House or any other organisation or individual.
• Second, the instrument is laid formally before Parliament as an affirmative instrument but must include a “scrutiny statement” setting out, amongst other things, the Government’s response to any representations made. Unlike PNs, these published drafts can change between the first and second stage.

59.In the House of Lords, the SLSC has been charged with responsibility for the scrutiny of all published drafts, and we set out the way we intended to approach the scrutiny of published drafts in a report.52 So far, we have seen 11 published drafts, most of which were laid by DfT. We cleared most published drafts without comment, but in three cases we asked for certain points to be made clearer in the EM when the instrument was laid before Parliament.

Corrections

60.We are disappointed that there was no improvement in the level of corrections in this session: correction rates of 9.6% (64) of all SIs we scrutinised and 5.6% (37) of all EMs mirror closely the figures in the end of session report for 2019–21 (9.7% and 5.7% respectively). We understand that some of this can be attributed to the pressure of legislating at speed during a public health emergency over an extended period, but now that the pandemic restrictions have been lifted, we look forward to a marked improvement in the level of corrections.

Table 2: Number of corrections in session 2021–22

SIs	No. laid	SIs replaced by correction	EMs replaced by correction
Affirmative	192	18 (9.4%)	11 (5.7%)
Negative	474	46 (9.7%)	26 (5.5%)
Total	666	64 (9.6%)	37 (5.6%)

61.In this session we saw a considerable number of errors that could have been avoided easily with more effective quality assurance processes. We note with particular concern the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment (No. 2) Regulations 2022 (SI 2022/229)53 which had to be laid because the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2022 (SI 2022/214) failed to include a commencement date, and the M271 Motorway (Junction 1 to Redbridge Roundabout) (Fixed Speed Limits) (Amendment) Regulations 2022 (SI 2022/202) which were laid due to an error in the previous instrument and moved the application of a speed limit by 55 metres because it was cheaper to change the legislation than to move the road signs.

62.We also note that one instrument was laid before Parliament with the same title as an earlier SI in the same year, using just a different SI number.54 This was in breach of the Government’s own guidance55 and has the potential to cause confusion. We also saw administrative errors leading to the wrong coming into force date being used for an instrument,56 so that the instrument unintentionally breached the 21-day rule. While these may be purely technical errors, the implications are serious in that time and resources, within departments and in Parliament, have to be spent correcting them.

63.In relation to sifting function, six of the 15 PNs laid under the 2018 Act had to be laid more than once due to errors such as omitting the coming into force date or using inconsistent titles for the PN throughout the accompanying EM.

64.Administrative errors highlight the importance of effective oversight and quality assurance processes within departments. We look to departmental Senior Responsible Owners and Lead Minsters for secondary legislation to ensure that all departments operate effective quality assurance processes.

Evidence from external parties

65.Submissions from external organisations or individuals who may be affected by changes introduced through secondary legislation can provide important insights and inform our scrutiny. In session 2021–22, we received 21 external submissions, raising concerns about SIs covering a wide range of policy areas, from vaccinations for NHS and social care staff, to genetically edited plants, the ban on trading ivory, calorie labelling and a new code of practice for private parking operators. The submissions we receive may be published on our website, alongside any response from the relevant department to the points raised.57

66.External submissions remind us how changes made by secondary legislation may well be more than purely technical amendments and can have a very real impact on people’s lives and how businesses operate. This reinforces our view about the importance of such changes being explained clearly and accessibly, and of Parliament being given every opportunity to scrutinise secondary legislation effectively.

Press coverage

67.Given the significance of some of the policy changes made through secondary legislation, in particular during the pandemic, and our concerns about some of the legislative practices and poor quality of explanatory material outlined in this report, we increased our engagement with the media during this session. This engagement also sought to raise awareness and understanding of the way our Committee and Parliament more generally scrutinise secondary legislation.

68.We put out 17 press releases in the session on a wide range of topics which generated over 140 pieces of coverage with an estimated potential reach of up to 50 million people. This media coverage included, for example, several articles reflecting our concerns about the regulations requiring care home staff58 and NHS staff59 to be vaccinated against COVID-19.60 Our report Government by Diktat and the Delegated Powers and Regulatory Reform Committee’s parallel report Democracy Denied? also resulted in media coverage, including a broadcast piece on Times Radio, 18 online articles and the BBC Radio 4’s Law in Action podcast in February 2022.61 We are grateful to the House of Lords Communications Team which made this increased media engagement possible.

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