The following memorandum was submitted to the House of Commons Select Committee on Procedure in 1996 and printed with its Fourth Report, Session 1995-96, HC 152, Delegated Legislation, as Appendix 7 (pp 67-72). See copyright notice below.
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Memorandum submitted by the academic members of The Study of Parliament Group: Study Group on Delegated Legislation
- Models of Scrutiny
- The Position in the Lords
- Other Problems with Delegated Legislation
- Academic Members of the Study Group on Delegated Legislation
1. This paper addresses the procedures for the scrutiny of Statutory Instruments (SIs) and other delegated legislation currently under investigation by the Procedure Committee. We necessarily concentrate on the House of Commons but we refer to the Lords where we think it useful to do so.
2. There are three principal problems in connection with the House’s current method of dealing with delegated legislation. The first is the impossibility of amendment of statutory instruments. The second is the extent of government control of the system by which delegated legislation is brought before the relevant committees in the House. The third is to an extent a subset of the second: whatever conclusions are reached by those committees, there is virtually no impediment to the further progress of the instrument other than the extreme outcome (and the extremely unlikely outcome) of a government defeat on the floor of the House. A search for some solution to these problems is made more urgent by the ever-increasing volume of instruments published and the tendency to incorporate ever more complex provisions in secondary legislation.
3. Anecdotal evidence suggests that few Members of Parliament who participate in the current procedures for scrutiny of delegated legislation find them satisfactory. The exposition by Ministers of the purposes of an instrument is necessarily brief. The instrument must be approved as a whole or rejected as a whole, which discourages the close scrutiny of the details of the provisions it contains since even the government cannot make amendments without withdrawing and re-laying the instrument. In the unlikely event of the government being defeated in committee in relation to the whole instrument there is no procedural outcome which triggers closer or further scrutiny, or which places any requirement on the government to reconsider its proposals.
4. The recent implementation of the reforms proposed by the select committee on the sittings of the House has had one relatively little remarked consequence. The standing orders now presume that the system of standing committees on delegated legislation will be the normal channel for dealing with most SIs. The present system of scrutiny of delegated legislation was originally devised as a method of dealing with SIs which were considered uncontroversial. The assumption was that most instruments would be debated on the floor of the House. As the House has now chosen to adopt a committee system for dealing with delegated legislation, it would seem timely to examine whether that system might not be made more effective in the hope of improving the legislative process by which an enormous proportion of each year’s statute book is written.(1)
5. Thus the whole procedure has the effect of discouraging detailed scrutiny of delegated legislation. Furthermore, in contrast with the recently introduced deregulation procedure, there is no formal mechanism for discovering whether the originating department has undertaken and responded to sufficient consultation with people likely to be affected before laying the instrument before Parliament.
6. In considering how the scrutiny and control of SIs by the House of Commons might be improved an examination of the procedures for dealing with European proposals and deregulation orders may be helpful. We precede this with a short paragraph on the work of the Joint Committee on Statutory Instruments.
7. The Joint Committee on Statutory Instruments (JCSI) considers all statutory instruments (except certain Northern Ireland Orders and Deregulation Orders). The number of SIs scrutinised by the Committee is, however, greater than the sum of affirmative and negative instruments, as some instruments are subject to neither procedure. The Committee’s terms of reference restrict its scrutiny to certain technical legal matters, such as whether the instrument is within the vires of the powers in the parent Act, or whether it makes an unusual or unexpected use of those powers. The Committee does not have any direct impact on the progress of an SI through the Commons, although in the Lords Standing Order 70 directs that no motion to approve an affirmative instrument can be moved until the JCSI has reported on it. The most the Committee can hope for is that its reports will lead to the tabling of a Prayer or other motion in either House: this happens more often in the Lords. Certain instruments of a financial nature are considered by the Commons members of the Joint Committee alone.
8. We do not consider that any procedural lessons from this scrutiny can be more widely applied, although the suggestions made later in this paper might impact on the work of the JCSI. The Procedure Committee may, however, wish to consider the amendment of Standing Orders to provide that no motion to approve an affirmative instrument can be moved until the JCSI has reported on it, as is the case in the Lords.
9. European legislative proposals are considered in the first place by the European Legislation Committee, which as well as addressing technical matters such as competence, also assesses whether each deserves further consideration. It determines this not specifically on the merits but rather on the political importance of the subject (eg minor amendments to the Common Fisheries Policy may be of greater importance than a substantial overhaul of the olive oil regime). Proposals which are in its view deserving of further consideration stand referred to a European Standing Committee. They may be dereferred for debate on the floor of the House by a motion moved by a Minister. Hence the European Legislation Committee operates as a “filter” for proposals.
10. There are two European standing committees, each with a membership of 13 appointed sessionally. The original Procedure Committee recommendation was for five committees. Any other Member may attend and speak but may not vote. In the standing committee a Minister makes a statement on the proposal which is followed by questions (for up to an hour) and then by a debate (for up to a total of two and a half hours) on a government motion. The motion may be amended but the Committee has no power to extend subsequent parliamentary proceedings. The House subsequently decides without debate on a motion which need not be the same as that passed by the Committee. The final decision on the legislation itself is taken by the Council of Ministers. Members with experience of the procedure seem to be generally supportive of it particularly of the opportunity to question Ministers; and even Ministers are occasionally moved to record their approval of the procedure.
11. The procedures for the consideration of deregulation proposals and orders have been in operation for less than a year. The initial Proposals, which must have been the subject of a public consultation process before their introduction, are considered by Committees in each House. In the Commons, the Deregulation Committee considers each Proposal against a set of criteria which are laid down by Standing Order 124A(5)(A). The Committee may take evidence in the course of producing a report to the House. That report may say (1) that the Proposal is appropriate to be made as a deregulation order in its present form, (2) that it requires amendment, or (3) that it is not an appropriate matter to be proceeded with as a deregulation order.
12. If the government decides to proceed with a Proposal, the Minister lays a final draft order which is considered by the two Committees before being presented for approval in the two Houses. Although draft deregulation orders are affirmative instruments they are not considered by the JCSI; the technical scrutiny is performed by the deregulation committees of the two Houses. The Government may then lay a draft order, which the Committee may approve (in which case the Question on it is put forthwith in the House), may approve on a division (which leads to a debate of one and a half hours in the House), or may reject (which would require three hours debate). The House has no experience yet of either of the latter two options.
13. The works of the Lords and Commons Committees in scrutinising deregulation Proposals and Orders is an example of effective parliamentary scrutiny of delegated legislation. This is illustrated by the fate of the proposal for a Deregulation (Sunday Dancing) Order. This would have allowed discos to charge for admission on Sundays and would have extended licensing hours. The two Committees reported that the proposal should not proceed as a deregulation order. There is no indication that the Minister will attempt to proceed with the order, even though the Home Office assured the Committees that it wished to have the legislation in place by Christmas 1995. Thus the Committees appear to have effectively killed a proposed item of delegated legislation.
14. We would argue for more detailed consideration of instruments by standing committees. But as part of any such reform we would suggest that a scrutiny filter similar to that provided by the European Legislation Committee should be introduced (perhaps operated by the Commons members of the Joint Committee on Statutory Instruments). This is because not all SIs–even affirmative SIs–would merit the more detailed consideration in standing committee that a system modelled on European standing committees would provide. A filter system should include the technical scrutiny functions carried out by the JCSI (see para 7 above) but it would also involve an assessment of the substantive importance of the instrument. The committee charged with these responsibilities would require greater resources and a wider range of expert advice than is provided to the members of the JCSI. They might also benefit from access to the experience and knowledge of the departmental select committees and could be empowered to co-opt Members for particular meetings or simply invite select committee Chairmen to attend.
15. Such a filter would not be difficult to implement for affirmative SIs. The question on those considered to be of little or no importance could be put forthwith on the floor of the House without the need for any debate. The remainder would be referred to standing committees with the continuing option that the most important could be dereferred for debate in the House. This would in fact result in fewer standing committees and fewer debates which may be seen as a quid pro quo of increased opportunities elsewhere. It might also allow for the membership of the committees to be appointed sessionally as for European standing committees, although there might be practical difficulties with finding sufficient Members willing to serve, particularly since the volume of SIs would probably require rather more than two committees.
16. Such a system, however, would run into conflict with the present arrangements for praying against negative SIs. The Opposition may not willingly give up (to a select committee with a government majority) their present power–in practice though only by convention–to secure debate on those negative SIs which they consider to be important. A possible compromise would be for the select committee to report on the importance of negative SIs as it would for affirmative ones, and either for the Government to give an undertaking to arrange, or for the standing orders to provide automatically for, a debate, normally in a standing committee, wherever a negative SI which the select committee to be considered of importance was prayed against.
17. In addition to consideration of a filter system, the Procedure Committee may wish to consider applying more widely features of the deregulation order procedure. We have in mind three distinct aspects of the new procedure: (1) a built-in period of public consultation, provided by statute; (2) an examination of the proposal by a select committee able to take evidence against a specific set of criteria; and (3) the opportunity for amendment, albeit indirect.
18. Although these are all desirable features in a procedure, they are also very time-consuming, particularly for members who have to attend regular weekly meetings covering a wide range of topics. SIs are many and various and public consultation on all of them is likely to be inappropriate as well as impractical; and any decisions on whether consultation is appropriate which are made before the SI is laid cannot of course be made by Parliament. We do not therefore make any recommendations for procedural reforms to improve public consultation, although we do believe that it behoves the Government to hold proper consultation on legislative proposals, as recommended by the Hansard Society Commission.(2)
19. If the Select Committee on Statutory Instruments were given the enlarged “filtering” role envisaged in paragraphs 14-16 above, it would be able to take evidence, as the European Legislation Committee does now, on individual instruments, although it might face difficulties from the time constraints inherent in SI procedures. It would not, however, be necessary for it routinely to produce substantive reports in the manner of the Deregulation Committee.
20. The power to amend is more difficult. It would be possible to debate SIs in standing committee on an amendable motion (as in European Standing Committees) and in that motion to state that the instrument should not be made without amendment. In some cases it might be also be practicable to state what that amendment should be. This would not, however, amount to direct amendment of the instrument and is a device often used in Lords debates (on the floor) on SIs (see paragraph 24 below). It would not be possible to provide a direct power to amend without undermining the whole basis on which SIs are made: that they are legislation made under powers delegated to Ministers.
21. A possible compromise, derived from the deregulation procedures, would be to permit SI Standing Committees to propose amendments. The procedure in committee would be the same as in a standing committee on a bill, but any amendments agreed to would not automatically be made to the instrument, although they would be reported to the House and published, perhaps in a form similar to Lords Amendments to public bills. In cases where proposed amendments to an affirmative SI had been agreed by the standing committee, if the instrument put to the House for its approval contained those amendments, the Question on it would be put forthwith. If on the other hand it did not, a debate (of, say, one and a half hours) would follow. This would allow the Government to resist any amendments at the cost of a debate in the House. If amendments were accepted, the instrument might technically have to be withdrawn and relaid and perhaps the select committee would have to certify that only those amendments which the standing committee had agreed to had been made to it before the Question on it could be put forthwith. In the case of negative SIs, the Standing Orders might be amended so that the reporting of proposed amendments by a standing committee triggered a debate on the floor of the House of the original prayer (again for, say, one and a half hours).
22. If standing committees on delegated legislation are to be able to consider amendments, it may be that they should also have the power to regulate their own sittings, as do standing committees on public bills. We do not believe that such a power should be unlimited. Instead we suggest that the scrutiny committee (the filter) should be able, in cases where the instrument is of unusual substance or complexity, to recommend that the standing committee might meet twice or for up to a specific number of hours, subject perhaps to a sittings motion moved in that committee. In any event the Chair would be obliged to put any question necessary to dispose of the instrument at the end of the allotted time. We would expect this power to be used very rarely since in practice instruments which might merit more than one sitting on most occasions would be dereferred for debate on the floor of the House.
23. In the Lords affirmative instruments are always debated on the Floor and time is always available for debates on prayers and on other motions relating to secondary legislation. But the Lords exercise restraint and do not lightly vote on secondary legislation. There is no statutory or procedural prohibition on such a vote but their Lordships no doubt realise that, because the Parliament Acts do not apply to such measures and there is accordingly no chance for the Lords to delay secondary legislation as they can a bill, a direct vote against delegated legislation in the Lords–whether refusing to affirm a motion for approval or passing a Prayer to annul a negative instrument–would kill the measure for that session. The only example since 1982 of such a direct vote is when the House divided on a motion to approve the Broadcasting (Restrictions on the Holding of Licences) (Amendment) Order 1995.(3)
24. Having said this, Peers have devised a number of ingenious motions, on which divisions have taken place, to express disapproval of secondary legislation, or to call on the government to amend, without directly voting down an order. We also note that the deregulation order procedure specifically provided a mechanism for the Lords to vote on such orders: the Government have undertaken that if the Lords approve a report from the Delegated Powers Scrutiny Committee (which performs scrutiny of deregulation orders in the Lords) to the effect that a draft deregulation order be not approved, the motion to approve the order will not be moved.
25. The Delegated Powers Scrutiny Committee in the Lords not only scrutinises deregulation orders: it also reports “whether the provisions of any bill inappropriately delegate legislative powers; or whether they subject the exercise of legislative power to an inappropriate degree of Parliamentary scrutiny.” There is no Committee in the Commons performing this role. There can be no doubt that this Committee has acquired a formidable reputation in the Lords (well illustrated during the passage of the Jobseekers Bill) but we do not consider its work further in this paper, for two reasons. Firstly, we expect that the Procedure Committee will take evidence directly from the Committee, and, secondly because this scrutiny tackles the delegation of powers in the parent act rather than the delegated legislation itself.
26. As well as considering the procedure for scrutinising delegated legislation, the Procedure Committee may wish to consider other issues arising as a result of the growth in the volume and significance of delegated legislation.
27. A general issue arising with regard to delegated legislation is the danger of “skeleton bills”. These are bills which are in effect nothing more than vehicles for extensive delegated powers. Vigilance by Parliament to ensure that the main content of what is intended is included in Acts rather than left to delegated legislation could ensure that the volume of such legislation is kept in check. The Lords Delegated Powers Scrutiny Committee draws attention to bills which it considers to be of this kind, such as the Education Bill session 1993-94 which the Committee reported was in part a skeleton bill “leaving legislation to be determined by the Secretary of State”.(4) The Procedure Committee may wish to consider whether such scrutiny could effectively be performed in the Commons as well, or can be best left to the Lords.
28. Although it may be beyond the scope of the Procedure Committee’s present inquiry we would also wish to draw Members’ attention to the existing distinction between delegated legislation and delegated non-legislative powers. Some such powers–to make Codes of Practice for example–are subjected by their parent Act to the affirmative or negative procedures and it may be worth reminding the House of the opportunity to apply parliamentary scrutiny to at least certain significant examples of such powers when the parent legislation is being enacted. Other examples of such powers are NHS circulars and directions given to nationalised industries or to utilities regulators. An alternative might be to require consultation before the Minister can proceed to implement such a Code or Directions. One bill currently before Parliament containing such powers is the Nursery Education and Grant-Maintained Schools Bill,(5) under Clause 1 of which the Secretary of State “may make arrangements for the making of grants in respect of nursery education”. This power is not subject to any parliamentary control.
29. It is currently not easy to change the degree of scrutiny to which an SI is subject once the parent Act has been passed. It could be argued that many of the SIs subject to the affirmative procedure by virtue of a parent Act passed up to 50 years ago(6) no longer require scrutiny and could be made subject to the negative procedure, or to no parliamentary control. But at present, if an Act requires that an SI is subject to a particular procedure, only primary legislation amending that Act can change this.
30. There would be three ways to tackle this problem. The first would be to provide, in some or all particular examples of future legislation, that provision for affirmative procedure would change to provision for negative procedure after the passing of a certain period of time. This was recently done in the Social Security (Incapacity for Work) Act 1994. The disadvantage is that this would have to be done on a case by case basis for particular bills and would not address any existing powers. A second option would be a kind of Statute Law Repeals Bill, to examine past Acts to see whether the degree of control provided is still necessary and changing it where appropriate. This would, however, be a mammoth task, fraught with problems.
31. A third solution would be a bill, to amend the Statutory Instruments Act, providing that all delegated legislation, whatever degree of parliamentary scrutiny the original Act provided, should, on being laid before Parliament, be referred to a committee with powers analogous to the Deregulation Committee to take evidence but performing a wider scrutiny role than the existing JCSI. The Committee would perform a task similar to that recommended for the Select Committee on SIs in our earlier proposal except that there would be no distinction between affirmative and negative procedure SIs. It might also be empowered to make recommendations for the parliamentary scrutiny of delegated non-legislation (see above). This would be a radical departure from the present situation in which the House is presumed to know in advance (sometimes decades in advance) what is the appropriate method of considering future legislation. It would provide a more comprehensible and arguably more rational approach to the parliamentary scrutiny of delegated legislation. It would, however, require primary legislation.
32. We suggest that the Procedure Committee considers the following three options for change:
- our preferred proposal: a new committee system, involving a filter mechanism similar to that employed by the European Legislation Committee, followed by improvements to the procedures for consideration in standing committee of instruments deemed to be of significance (paragraphs 14-22);
- a more radical suggestion probably involving the amendment of the Statutory Instrument Act, to provide that all delegated legislation, regardless of the degree of parliamentary scrutiny to which it is subject by its parent Act, be referred to a new committee to take evidence and perform a detailed scrutiny role, including a decision on the degree of parliamentary scrutiny to which it should be subject (paragraph 31);
- in addition, we suggest the amendment of Standing Orders to provide that no motion to approve an affirmative instrument can be moved until the JCSI has reported on it, as is the case in the Lords under Standing Order 70 (paragraph 8).
Prof G H Drewry, Royal Holloway and Bedford New College
Dr P J Giddings, University of Reading
Mrs P M Leopold, University of Reading
Prof Dawn Oliver, University College London
Prof A C Page, University of Dundee
Prof David Miers, University of Wales, Cardiff
Donald Shell Esq, University of Bristol
23 February 1996
1. To illustrate this point: the number of instruments coming into force in 1973 was 2,227 rising to 3,345 in 1995, having remained above 3,000 since 1992; and the number of pages of all instruments was 6,342 in 1988 and 7,240 in 1992.
Prepared by Simon Patrick, 30 May 2001