Oral Evidence with Department for Transport on its legislative backlog
Background
25.For several years, we have engaged with the Department for Transport (DfT) about instruments coming before us that have implemented international maritime legislation many years, sometimes decades, after their due date.10 DfT responded in correspondence by setting out a programme of some 40 statutory instruments (SIs) that were needed to eliminate this backlog (although, we should add, the date for its completion has kept slipping).11 What prompted us to invite oral evidence from DfT, however, was the Air Navigation (Amendment) Order 2021 which was also long overdue–therefore raising a concern that an apparent culture of delay extended to more than just the maritime division of the Department.
26.We are grateful to Robert Courts MP, Parliamentary Under Secretary of State for Aviation, Maritime, Security and Civil Contingencies, and his officials who came before us not only to explain the problems we had identified but also to provide a plan for their solution. A full transcript is published on our webpage,12 and a follow-up letter is set out in Appendix 2 to this report.
Aviation
27.Our chief concern about the Air Navigation Order 2021 was that legislation to address a safety recommendation from the Air Accident Investigation Branch made on 9 September 2014 had not been implemented for seven years.13 The explanation of the process offered by DfT for our 12th Report included long periods between the “decision points” that indicated a lack of a proper system of oversight. In evidence the Minister admitted that the Department could offer no adequate explanation for four years of the delay, and that there had been an internal review of procedures, with a new quarterly legislation board instituted at Ministerial level to monitor progress and to prevent the same thing happening again.14
Maritime
28.The Minister identified the factors that had contributed to the queue of maritime legislation awaiting implementation: insufficient specialist drafting resource, EU legislation queue jumping to pre-empt infraction proceedings, the continual addition of new obligations from international organisations and, more recently, the pressure to deal with Brexit and pandemic requirements.15 The Minister set out new arrangements that he was confident would deal with the backlog by the end of 2023.16
General
29.We asked the Minister whether other DfT sectors, such as road and rail, also suffered from implementation delays.17 In the follow-up letter sent after the evidence session, the Minister provided a detailed breakdown of the figures that he gave in evidence. It includes a table which sets out a total of 41 SIs:
- 13 maritime SIs classed as “international backlog”;
- seven domestic maritime SIs that are delayed;
- 12 maritime SIs in the programme awaiting implementation that are not overdue; and
- Nine delayed SIs from other parts of DfT (two rail, five roads, two aviation).
30.We also sought an assurance from the Minister that the Department, particularly in the maritime sector, was not using guidance, such as Merchant Shipping Notices, as a substitute for legislation.18 The Minister explained that different types of notice have a distinct legal weight and character. Based on our recent observations of the blurring between legislation and guidance generally, we encourage DfT to ensure that those distinctions are made absolutely clear to the reader.
Way forward
31.We welcome both the Minister’s candid admission that DfT, particularly in the maritime sector, had made errors, and his assurance that, following a full audit of outstanding legislation, there is now a clear plan for remedying the deficiencies.
32.We also asked about the role of the Senior Responsible Owner (SRO) for secondary legislation in relation to the legislative programme.19 Louise Morgan, the DfT SRO, explained that she is fully involved in promoting legislative training and committed to improving DfT’s performance and capacity. She was, however, unable to assess what percentage of her job relates to the SRO role, as this fluctuates from week to week. We have a general concern that the SRO function may have been given to already busy people as an add-on: Departments need to ensure that this function is given adequate priority.
33.We have previously argued the need for oversight of departmental secondary legislative programmes to involve senior management,20 so we will watch with interest to see how effective DfT’s new arrangements will be in clearing the backlog and staying on top of the regular influx of international obligations in the maritime and aviation sectors.
34.We are encouraged that DfT now appears to have a firm grip on its legislative programme, but the current impetus needs to be maintained. A key challenge for the Department will be ensuring continuity and some form of institutional memory, so that the problems we have identified do not re-emerge once the individuals who spoke with such conviction in oral evidence have moved on from their current posts.
10 See for example Merchant Shipping (Life-Saving Appliances and Arrangements) Regulations 2020 (SI 2020/501) 17th Report, (Session 2019–21, HL Paper 73).
11 See correspondence in 21st Report (Session 2017–19, HL Paper 88), 17th Report (Session 2019–21, HL Paper 73) and 11th Report, (Session 2021–22, HL Paper 52).
12 See transcript of oral evidence: ‘Air Navigation (Amendment) Order 2021’: https://committees.parliament.uk/oralevidence/2844/html/ [accessed 1 November 2021].
13 See 12th Report, (Session 2021–22, HL Paper 63).
14 QQ1-3.
15 QQ5-6.
16 See also correspondence in our 11th Report, (Session 2021–22, HL Paper 52).
17 Q9.
18 Q8.
19 QQ11-12.
20 See for example: Merits of Statutory Instruments Committee, The Management of Secondary Legislation: follow up. (13th Report, Session 2007–08, HL Paper 70).