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Review of House of Lords investigative and scrutiny committee activity in 2021–22 Contents

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Chapter 4: Secondary Legislation Committees

Delegated Powers and Regulatory Reform Committee

125.During the reporting year (2021/22 financial year), the Delegated Powers and Regulatory Reform Committee (DPRRC) met 23 times and published 24 reports on bills. It considered 55 bills (29 Government bills and 26 private members’ bills) and reported on three sets of amendments. It also reported on one draft Legislative Reform Order, the draft Legislative Reform (Renewal of National Radio Multiplex Licences) Order 2022.231

126.In addition, in November 2021, the Committee published a thematic report, entitled Democracy Denied? The urgent need to rebalance power between Parliament and the Executive.232 The focus of the report was the relationship between Parliament and the executive, and included a review of Committee reports since its inception in 1992. The Committee concluded that Parliament should consider, as a matter of urgency, how the balance of power between Parliament and the executive should be re-set, based on two fundamental principles: first, that primary legislation, and the powers conferred by it, should be drafted on the basis of the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament; and, second, that the threshold between primary and delegated legislation should be founded on the principle that the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegation. The report included revised guidance to departments, reflecting the findings of the report but also reiterating the Committee’s historic concerns about skeleton provision233 and Henry VIII powers.234 In making its report, the DPRRC collaborated closely with the Secondary Legislation Scrutiny Committee (SLSC), which, on the same day as the publication of Democracy Denied?, published its report Government by Diktat: A call to return power to Parliament235 (see paragraph 137 below). In preparation for the parallel reports, the two Committees held joint evidence sessions with the following witnesses: first, in April 2021, Dame Elizabeth Gardiner, First Parliamentary Counsel and Permanent Secretary, Government in Parliament Group; Susanna McGibbon, Treasury Solicitor and Permanent Secretary, Government Legal Department, and Tamara Finkelstein, Permanent Secretary of the Department for Environment, Food and Rural Affairs and Head of the Civil Service Policy Profession,236 and, second, in May 2021, the Rt Hon. Jacob Rees-Mogg MP, then Lord President of the Council and Leader of the House of Commons.237 The Committee also held a further evidence session with Dame Elizabeth in May 2021.238

127.Joshua Rozenberg, writing on the day of publication, described the two reports as being “of fundamental constitutional importance”.239 The Constitution Society highlighted the reports in their Second Report from the United Kingdom Constitution Monitoring Group.240 On 6 January 2022, Baroness Cavendish of Little Venice initiated a debate in the House of Lords, the focus of which was on the use of skeleton bills and associated delegated powers. Lady Cavendish said that the debate was guided by the Committees’ “two excellent reports”.241 The Government responded to the DPRRC report on 24 January 2022. While a number of recommendations were not accepted, the Government agreed, amongst other things, that the principles of parliamentary democracy should be included in the Cabinet Office Guide to Making Legislation and that that Guide should be strengthened to reflect the Committee’s revised guidance to departments. The Committee, continuing its close collaboration with the SLSC, will undertake further work in the light of the Government response in the forthcoming session.

128.The DPRRC considers all bills except supply and consolidation bills. Where a bill contains no delegated powers or there is nothing in a bill to which the Committee wishes to draw the attention of the House, it will report briefly to that effect. Of the 29 Government bills considered during the reporting period, the Committee made recommendations on the following 16 bills: Professional Qualifications Bill, the Environment Bill, the Advanced Research and Invention Agency Bill, the Telecommunications (Security) Bill, the Charities Bill, the Police, Crime, Sentencing and Courts Bill, the Armed Forces Bill, the National Insurance Contributions Bill, the Health and Care Bill, the Subsidy Control Bill, the Nationality and Borders Bill, the Commercial Rent (Coronavirus) Bill, the Building Safety Bill, the Judicial Review and Courts Bill, the Elections Bill and the Economic Crime (Transparency and Enforcement) Bill. With regard to the Subsidy Control Bill, the Committee took the exceptional step of not only reporting on the Bill but also writing to Mr Rees-Mogg about the provision relating to financial stability directions which, it said, involved fundamental issues of government accountability and parliamentary scrutiny and, referring to recommendations in Democracy Denied?, was a stark example of a breach of the principles of parliamentary democracy.242

129.The Government is expected to provide a response to the Committee’s substantive reports before committee stage of the relevant bill. Where, because of tight legislative timescales, this is not possible, then the Committee’s guidance to departments asks that the minister write to the Committee explaining the reasons for the delay and stating when the response will be provided. During the reporting year, responses were received for all reports on Government bills. Analysis of the Government’s overall acceptance rate of Committee recommendations is not an exact science, in part because acceptance may be partial, but a reasonable approximation can be made. During the reporting period, the acceptance rate was in the region of 40%, with notable rates of acceptance in relation to the Environment Bill, the Telecommunications (Security) Bill, the Police, Crime, Sentencing and Courts Bill, the Armed Forces Bill, the Subsidy Control Bill, the Commercial Rent (Coronavirus) Bill. This contrasts with the Government’s rejection of the Committee’s recommendations in relation to the Professional Qualifications Bill, the National Insurance Contributions Bill, the Health and Care Bill, the Nationality and Borders Bill, the Judicial Review and Courts Bill and the Building Safety Bill.

130.The Committee is supported in its scrutiny work by a departmental delegated powers memorandum (“a memorandum”) for each Government bill (or private member’s bill supported by the Government). The purpose of a memorandum is to explain and justify the delegation of legislative powers in a bill and the level of parliamentary scrutiny applied to their exercise. It has become the practice of the Committee to comment, where appropriate, on the quality of a memorandum. During the reporting year, the Committee commented critically on some (for example, those accompanying the Professional Qualifications Bill,243 the Nationality and Borders Bill,244 and the Judicial Review and Courts Bill 245) but commended others (for example, the Environment Bill,246 the Nuclear Energy (Financing) Bill,247 and the Building Safety Bill,248 the last of which was also commended for the department’s provision of illustrative secondary legislation for a number of important delegated powers).

131.In Democracy Denied?, the Committee stated its support for pre-legislative scrutiny of draft bills and, on occasion, it has assisted parliamentary committees charged with pre-legislative scrutiny of a draft bill. The Committee, which has no House of Commons equivalent, has advised both joint committees and House of Commons-only pre-legislative scrutiny committees. During the reporting period, it provided a note to the House of Commons Business, Energy and Industrial Strategy (BEIS) Committee in relation to the draft Downstream Oil Resilience Bill.249 The BEIS Committee reported in November 2021. In its report it said: “We are grateful to the [DPRRC] for … supporting our effort to provide effective pre-legislative scrutiny of the draft bill”.250 At the request of the BEIS Committee, the Government response, published in February 2022, addressed the points raised by the DPRRC in its note.251

Joint Committee on Statutory Instruments

132.The Joint Committee on Statutory Instruments (JCSI) is comprised of seven members from each House and seeks to ensure that the legal drafting of statutory instruments laid before Parliament is complete, appropriate and does not exceed the powers set out in the Act under which the instrument is made. The terms of reference of the Committee are set out in Standing Order 74 of the House of Lords Standing Orders relating to Public Business.252 Under Standing Order 73, no motion to approve an affirmative instrument can be moved until the JCSI has reported on it, although the Standing Order does not prevent relevant instruments being debated in Grand Committee. On occasion, the Standing Order is suspended by the House to enable an approval motion to be moved. This occurred most recently in relation to SI 2022/452 Russia (Sanctions) (EU Exit) (Amendment) (No. 8) Regulations 2022, a made affirmative instrument which was laid and came into force on 14 April 2022(during the Easter recess), debated in Grand Committee on 26 April 2022 and approved by the House on 28 April 2022.

133.The Committee usually meets weekly when the Houses of Parliament are sitting. During the reporting year (2021/22 financial year), the Committee met 33 times and published 32 reports. It considered 787 instruments (including both instruments subject to and those not subject to a parliamentary procedure) (205 affirmative, 486 negative and 96 no procedure), of which 126 were drawn to the special attention of the Houses.

134.The Committee also published two special reports. The first, Rule of Law Themes from COVID-19 Regulations,253 was published in July 2021. The report set out a number of recurring themes that arose in the Committee’s consideration of statutory instruments addressing the COVID-19 pandemic. The Committee noted with satisfaction that the Government has frequently taken action in response to reports of the Committee, and that there appeared to be a spirit of mutual respect and collaboration in the Committee’s dealings with the Government. The Committee, however, identified the following core issues: that the presumption against the sub-delegation of legislative power was a long-standing and important principle and the pandemic should not be used as an opportunity to depart from it unnecessarily; that, in some cases, offences underpinning enforcement of COVID-19 regulations were drafted with insufficient clarity or in such a way as appeared irrational; that a clear distinction needed to be made between guidance and requirements imposed by law, and that guidance should not be relied upon as a way of tightening up insufficiently certain provisions of legislation; whilst acknowledging that the pandemic had imposed significant pressures on the Government, the Government should, none the less, ensure that people were given as much notice of legislation as possible, and that explanatory material describing the effect of legislation should do so accurately; and, that where emergency legislation made significant changes on a temporary basis, those changes should not be made permanent without careful consideration—in particular, where legislation affected fundamental rights, those rights should “not be quietly diluted under the cover of the pandemic response”.254 The second special report, published in October 2021, set out the Government’s response to the first special report.255

135.The Committee is supported by a team of Counsel from both Houses, including three House of Lords Counsel. House of Lords Counsel advise on affirmative instruments, also assisting departments by undertaking pre-laying scrutiny.

Secondary Legislation Scrutiny Committee

136.During the reporting year (2021/22 financial year), the Secondary Legislation Scrutiny Committee (SLSC) met 39 times and published 39 reports. It scrutinised 682 statutory instruments (195 affirmative and 487 negative instruments), 30 proposed negative instruments (PNs) laid under the European Union (Withdrawal) Act 2018 (“the 2018 Act”), 11 published draft instruments laid under the 2018 Act, and one PN laid under European Union (Future Relationship) Act 2020 (“the 2020 Act”). Of the instruments considered, the Committee drew 39 (6%) to the special attention of the House, most often on the ground that the instrument was “politically or legally important or gives rise to issues of public policy likely to be of interest to the House” but also with an unusually high proportion of instruments reported on the ground of inadequate explanation. In addition to drawing instruments to the special attention of the House, the Committee also includes in its reports information paragraphs where an instrument is of interest, is topical or follows an unusual process. During the reporting year, the SLSC published 140 information paragraphs on instruments other than COVID-19 related instruments. Near the start of the pandemic, in April 2020, the Committee announced that it would provide information paragraphs in its weekly reports on all COVID-19 instruments. The Committee has continued this practice and in the 2021–22 session it published 119 information paragraphs on 126 instruments relating to COVID-19 (49% of the total number of information paragraphs published during the session). Instruments about which information paragraphs have been published (as well as instruments drawn to the special attention of the House) are identified by an italicised note in House of Lords Business.

137.In November 2021, the Committee published its thematic report, entitled Government by Diktat: A call to return power to Parliament,256 which was published in parallel with DPRRC’s report Democracy Denied? The urgent need to rebalance power between Parliament and the Executive257 (see paragraph 126 above). Working in close collaboration with the DPRRC, the SLSC report joined forces with the DPRRC in asserting: the fundamental 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 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. In addition, the Committee made recommendations and observations about issues specific to the Committee’s terms of reference. 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; failure to provide, or to provide adequate, impact assessments 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. The Government responded to the SLSC report on 24 January 2022.258 Many of the recommendations were not accepted, although the Government repeated their agreement, stated in their response to the DPRRC report, that the principles of parliamentary democracy should be included in the Cabinet Office Guide to Making Legislation, agreed that any legislative sub-delegation of power should be explained in an instrument’s EM and agreed that the provision of impact assessments was important for parliamentary scrutiny. Examples of the commentary about the report following its publication are given above (see paragraph 127 above). As has already been noted the SLSC, with the DPRRC, will undertake further work in relation to the Government response in the forthcoming session.

138.It is the practice of the Committee to publish a report at the end of each session setting out its observations on matters relating to its terms of reference, along with activity statistics. The end of session report for the 2021–22 session, entitled What next? The Growing Imbalance between Parliament and the Executive, was published on 28 April 2022,259 just outside the reporting period. Splitting the statutory instruments considered by the Committee into three main categories—(1) COVID-19 instruments, (2) Brexit instruments and (3) “business as usual” (BAU) instruments—the report showed that during the 2021–22 session, in contrast to the findings of the last end of session report, BAU instruments predominated, accounting for 75% of instruments during the session, with COVID-19 instruments accounting for 19% and Brexit instruments for 6%. The report also highlighted a number of areas relating to statutory instruments which the Committee took the view were in need of improvement. These included: restrictions on effective parliamentary scrutiny, insufficient provision by departments of information about impact, inadequate consultation, poor quality explanations, legislative backlogs, issues relating to the availability and appropriate use of guidance, and the number of correcting instruments.

139.From time to time, the Committee will invite ministers to give oral evidence about instruments which the Committee considers require further investigation. These have happened more frequently during the reporting period than in earlier years and included the following:

• In July 2021, the Committee took evidence from the Rt Hon. Nadhim Zahawi MP, then Minister for Covid Vaccine Deployment and Minister for Business and Industry at the Department of Health and Social Care, in relation to the draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which made it mandatory (subject to certain exemptions) for those working in a care home to be fully vaccinated.260 The Committee’s principal concern was the absence of an impact assessment when the instrument was laid.
• In October 2021, the Committee took evidence from Robert Court MP, Parliamentary Under-Secretary of State for Aviation, Maritime, Security and Civil Contingencies, Department for Transport, about the backlog in the implementation of international maritime legislation.261
• In January 2022, the Committee heard from Baroness Vere of Norbiton, Parliamentary Under-Secretary of State for Roads, Motoring Agencies, Buses and Taxis, Department for Transport about the draft Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021, which, in order to increase the number of test slots for available for Heavy Goods Vehicles, removed a requirement for car and van drivers to take a certain test before they could tow heavier trailers.262 The Committee’s concern was again the absence of an impact assessment.
• In March 2022, evidence was taken from Baroness Stedman-Scott, Minister for Work and Pensions about the Universal Credit and Jobseeker’s Allowance (Work Search and Work Availability Requirements—limitations) (Amendment) Regulations 2022.263 The Committee questioned the Minister about why the instrument had come into force the day after it had been laid, in breach of the convention that there should be a period of least 21 days between when an instrument is laid and when it comes into force (the 21-day rule).

140.Following on from concerns about the provision of impact assessments, in March 2022, the Committee began a short inquiry into general issues relating to impact assessments.264 The Committee first heard from Christopher Carr, Director of the Better Regulation Executive at the Department for Business, Energy and Industrial Strategy,265 and then in early April, from Stephen Gibson, Chair of the Regulatory Policy Committee.266 The Committee will be taking further evidence and report its findings in the new session.

141.Finally, given the significance of some of the policy changes made through secondary legislation, the Committee has increased its engagement with the media, with the assistance of the House of Lords communications team. In the 2021–22 session, the Committee issued 17 press releases which generated over 140 pieces of coverage.

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