Appendix 1: Correspondence: The relationship between guidance and legislation and the role of Senior Responsible Owners for Statutory Instruments
Letter from Lord Hodgson of Astley Abbotts, Chair of the Secondary Legislation Scrutiny Committee, to the Rt Hon. Jacob Rees-Mogg MP, Lord President of the Council and Leader of the House of Commons
I am writing to you as Chair of the Secondary Legislation Scrutiny Committee (SLSC).
On 12 May, with other members of the SLSC, I joined the Delegated Powers and Regulatory Reform Committee (DPRRC) to hear you give evidence on legislative practice. During the evidence session, a number of issues were touched upon which had particular relevance to the SLSC. These included, amongst other things, the relationship between guidance and legislation, and quality control measures in relation to secondary legislation.
In evidence, you said: “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”. I would therefore like to seek your views about an instrument that the SLSC considered at the end of May: the Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England) (No. 2) Order 2021 (SI 2021/548), and reported on it in its 2nd Report of this session. At paragraph 6, we said:
“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 redlegged 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.”
This mismatch is a matter that we have raised more often in the context of instruments made in response to the pandemic, where the guidance appeared to be stricter than the law. On this occasion, the reverse appears to be the case. Neither circumstance is acceptable. We would welcome your proposals therefore on how this issue of a mismatch between guidance and legislation can be resolved to ensure not only clarity, but also congruence, between the two.
We are aware that an important element of quality control of statutory instruments has been the introduction of SI Senior Responsible Officers (SROs) in departments. This matter was raised in an evidence session held by the SLSC with three Permanent Secretaries on 20 April, and taken up again when you came before the DPRRC. You said:
“Statutory instruments need to be got right. The processes that have been introduced around statutory instruments have been tightened up. If you go back five years, the Leader’s office was not expected to have a Minister responsible for statutory instruments in each department. Things had been improving before my time and I hope that is continuing. Every department should have an SRO for this. We will take up the issue with the departments you have mentioned and will revert back to the committee on why there is this gap.”
We have now received a list of SROs. While we are grateful for the list, we would welcome the further information you indicated you would provide about the departments which are currently recruiting an SRO (Cabinet Office, HM Treasury, MHCLG and the NIO). We were concerned to learn that these departments have yet to appoint SROs and would welcome further information, in particular, about when the recruitment exercises began and when it is expected that the posts will be filled. It would also assist us in our work if you would undertake to provide an updated list as when it is amended. It is our intention to make contact with the SROs to ensure a mutual understanding of what constitutes good practice in presenting secondary legislation to Parliament
I am copying this letter to Lord Blencathra, Chair of the DPRRC, and to Dame Elizabeth Gardiner, First Parliamentary Counsel.
16 June 2021
Letter from the Rt. Hon. Jacob Rees-Mogg MP, Lord President of the Council and Leader of the House of Commons, to Lord Hodgson of Astley Abbotts, Chair of the Secondary Legislation Scrutiny Committee
Thank you for your letter of 16 June following my evidence session with the Delegated Powers and Regulatory Reform Committee (DPRRC) and for the important points you raised regarding the distinction between legislation and guidance and the importance of quality control measures for secondary legislation.
As I mentioned in my letter to you of 14 February, as a general principle, legislation needs to be detailed and clear enough that guidance does not need to be relied upon for the purposes of interpretation. Similarly, where guidance accompanies legislation, it is important that it describes the effect of the legislation accurately. I have asked officials to remind departments of this. With reference to the specific case you mention, I understand the department will be writing to provide further details and would be happy to meet if the Committee wishes.
I agree that the role of Senior Responsible Officers (SRO) within departments is an important part of ensuring the quality of secondary legislation across government. I can confirm that the departmental vacancies you drew to my attention during the evidence session were as a result of personnel changes. MHCLG and the NIO have now filled these positions permanently, HM Treasury has appointed an interim SRO whilst they appoint a suitable permanent replacement and the Cabinet Office is in the process of appointing a replacement. An updated list will be sent in due course.
6 July 2021