Most of the UK’s general public law is made not through Acts of Parliament but through delegated legislation in the form of Statutory Instruments. What is delegated legislation and how does the parliamentary scrutiny system for this legislation work?
What is delegated legislation?
- Most of the UK’s general public law is made not through Acts of Parliament (primary legislation) but through delegated legislation (also referred to as secondary or subordinate legislation).
- Acts of Parliament provide a framework into which much of the real detail and impact of the law will subsequently be added through delegated legislation.
- The majority of delegated legislation is made in the form of Statutory Instruments (SIs) that exist within that framework of powers delegated to ministers by Parliament in the parental Act. An SI is the ‘child’ of the power in the ‘parent’ Act.
- SIs can be used to fill out, update, or sometimes even amend primary legislation without Parliament having to pass a new Act.
- The scope of delegated legislation varies considerably, from the very technical SI that is procedural in character to the wide-ranging power that can, for example, abolish quangos. Unlike primary legislation, delegated legislation is subject to judicial review.
- The journey involved in making delegated legislation, from idea to implementation, is explained in the 6-step infographic below.
What is a Henry VIII power?
- A Henry VIII power is a delegated power in an Act of Parliament that enables ministers to amend or repeal primary legislation by Statutory Instrument.
- The use of such powers challenges the constitutional principle that Parliament is the sole legislative authority with the power to create, amend or repeal any law.
- Henry VIII powers are now a relatively common feature of legislation and SIs made under these powers are subject to parliamentary scrutiny.
Why are ministers criticised for using delegated legislation?
- The acceptance of the system of delegated legislation has been predicated on its reasonable use and application by ministers coupled with trust in Parliament’s system of scrutiny.
- Traditionally, the justifications for using delegated legislation have been the need to elaborate complex and technical detail that cannot be easily done on the face of a Bill; the need for flexibility and adaptability; the advantage of involving external expertise; and the capacity to act quickly in times of crisis and emergency.
- However, the use of delegated legislation by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail.
- There is concern that delegated legislation is now being used for administrative convenience and often in circumstances where governments have not fully pinned down the detail of policy proposals.
- There has been such an expansion in the scope and application of powers and procedures that a precedent could arguably be found to justify almost any form of delegation a minister might now desire.
- There is now real concern - exacerbated by the government’s approach to legislating for Brexit and the Covid-19 pandemic - that Ministers are increasingly seeking to use SIs rather than Bills to achieve their policy objectives as these receive much less scrutiny than primary legislation, and take up less parliamentary time.
How much delegated legislation is produced each year?
- Between 1950 and 1990 the number of SIs produced each calendar year rarely rose above 2,500. From 1992 onwards, however, it has rarely dipped below 3,000.
- Of these SIs on average around 1,000 - 1,200 are laid before Parliament for scrutiny during each parliamentary session.
- A range of factors – the expansion of the regulatory state, the wide range of social security provision, the rapidly changing nature of technology, the growth in EU legislation – have all contributed to a significant increase in the volume, technicality and complexity of delegated legislation in recent years.
What parliamentary committees scrutinise delegated legislation?
The Delegated Powers and Regulatory Reform Committee (DPRRC)
- All bills, when they reach the House of Lords are considered by the DPRRC.
- The Committee’s terms of reference are to examine ‘whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny’.
- The Committee’s scrutiny is entirely document-based, using the Delegated Powers Memorandum provided by the government when a bill arrives in the Lords.
The Secondary Legislation Scrutiny Committee (SLSC)
- This House of Lords committee performs a sifting function, considering the policy merits and implications of all SIs laid before the Upper House.
- Through its reports the Committee draws to the attention of the House any SI that it considers may be interesting, flawed or inadequately explained by the government.
- The grounds on which an SI may be drawn to the special attention of the House include that: it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House; it may be inappropriate in view of changed circumstances since the enactment of the parent Act; it may imperfectly achieve its policy objectives; the explanatory material provides insufficient information to gain a clear understanding of the SI’s policy objectives and intended implementation; and there appear to be inadequacies in the consultation process.
The European Statutory Instruments Committee (ESIC)
- Orders laid under powers in Section 8 of the European Union (Withdrawal Act) 2018 and Section 29 of the European Union (Future Relationship) Act 2020 are subject to a bespoke statutory procedure. All negative SIs have to be sifted to see whether they should be upgraded to active scrutiny via the affirmative procedure.
- Negative SIs have to be laid first as a ‘proposal’ and sent to the designated sifting committees: in the House of Commons this is the European Statutory Instruments Committee (ESIC) (in the House of Lords it is the Secondary Legislation Scrutiny Committee (SLSC)).
- ESIC has 10 days to recommend upgrading the scrutiny process to the affirmative procedure. Its recommendations are advisory not binding. At the end of the 10-day sifting period, the government can lay the proposal under the negative procedure or upgrade it to the affirmative procedure if that has been recommended. If the minister rejects the Committee’s upgrade recommendation then (s)he must lay a statement explaining why.
- Once the sifting process is complete, the SI can then be laid before Parliament as either a negative or affirmative SI
The Joint Committee on Statutory Instruments (JCSI)
- This Joint Committee considers all SIs laid before Parliament. Any SIs subject to Commons scrutiny only - generally in relation to taxation matters - are considered by MPs on the Committee who sit as the Select Committee on Statutory Instruments for this purpose.
- The JCSI assesses the technical qualities of each SI and draws to the special attention of each House any that give rise to legal concerns such as vires or defective drafting.
What are the main scrutiny procedures for delegated legislation?
(i) Laid only
- Some SIs are simply laid before Parliament and are not subject to scrutiny; no further procedure is necessary or possible.
(ii) ‘Made negative’ procedure
- The majority of Statutory Instruments considered by Parliament (generally around three-quarters of all SIs laid before Parliament in any session) are subject to the ‘made negative’ procedure.
- The SI is laid before Parliament after it has been made – signed – into law by the minister, but may be annulled if a motion to do so – known as a ‘prayer’ – is passed by either House within 40 days of it being laid before Parliament.
- In the House of Commons MPs table a ‘prayer’ motion in the form of an Early Day Motion. If time is allocated for consideration of the ‘prayer’ motion then MPs will have up to 90 minutes to debate the instrument.
- Parliamentary recesses of over four days do not count towards the 40-day scrutiny period.
- However, Early Day Motions are motions for which no fixed parliamentary time is allocated. THe government controls the parliamentary timetable so whether an MP’s objection to an SI is ever debated depends on whether or not the government will schedule time for it. There is no guarantee that even a prayer motion laid by the official Opposition will be debated. If time is allocated, MPs have up to 90 minutes to debate the instrument.
- Sometimes the government does not prevent a debate but runs down the clock, scheduling the debate after the expiry of the 40-day scrutiny period. If a debate is held after the 40-day ‘praying against’ period expires, the SI is debated on a motion that the Order ‘be revoked’ (not annulled).
- In the House of Lords, time is usually found for debate on a prayer motion. This debate is not subject to a time-limit. Peers can either seek to reject the instrument or table a non-fatal motion, critical of the instrument without annulling it.
- Debates on ‘made negative’ SIs are intentionally rare. This form of scrutiny was designed to deal with administrative and technical matters that MPs did not wish to debate. Over recent decades, however, there has been no clear or consistent correlation between the subject matter of a delegated power and the scrutiny procedure to which the SIs arising from it are allocated. Successive governments’ use of delegated legislation has drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail. As a consequence, many SIs subject to the ‘made negative’ scrutiny procedure are no longer anodyne in content or character.
(iii) ‘Draft affirmative’ procedure
- The most important pieces of delegated legislation (generally around 20-25% of all SIs laid in a normal parliamentary session) are subject to a more stringent form of control and require the active approval of both Houses of Parliament before they can come into effect.
- The SI is laid before Parliament as a draft, and cannot be made into law by the minister unless and until it has been approved by the House of Commons and in most cases also the House of Lords.
- In the House of Commons affirmative SIs are referred to a Delegated Legislation Committee (DLC) for debate, unless the government tables a motion for the debate to be held in the Commons chamber (known as being debated ‘on the Floor of the House’).
- DLCs are not like Select Committees. They are temporary not standing committees, so they have no dedicated parliamentary staff to support and advise Members and produce briefings. The Members are appointed by the Whips not elected by the House and they may be appointed at less than a week’s notice.
- DLC debates can last up to 90 minutes but in practice rarely last more than half an hour. The debate is conducted on a ‘consideration’ motion. Following debate in committee, an approval motion is put formally to the House without debate on a separate day.
- In the House of Lords, the approval motion for an affirmative SI cannot be moved until the Joint Committee on Statutory Instruments has reported on the SI. The House of Commons does not observe this ‘scrutiny reserve’.
- A motion to approve an affirmative instrument can be taken in the House of Lords in either Grand Committee or on the Floor of the House. Peers can express their opposition or concern by making an amendment to the approval motion or by tabling a separate motion, effectively withholding the agreement of the House (as happened in October 2015 when Peers delayed approval of the Tax Credit regulations).
(iv) ‘Made affirmative’ procedure
- SIs subject to this ‘urgent’ procedure are usually rare but have been used far more regularly than normal to deliver Brexit and to address the Covid-19 pandemic. The procedure enables ministers to act quickly in response to an emergency or a fluid public health situation, bringing a measure into force without having to wait for parliamentary scrutiny.
- The SI is laid before Parliament after it has been made – signed – into law by the minister, but cannot remain law unless it is approved by the House of Commons and in most cases also the House of Lords within a statutory period – usually 28 or 40 days. However, the clock stops for parliamentary adjournments of over four days. When ‘made affirmative’ SIs are laid during recess, the scrutiny clock therefore does not start ticking until the day the House returns.
- The procedure to debate and approve the SI follows the process for draft affirmatives.
(v) ‘Draft negative’ procedure
- A small share of Statutory Instruments considered by Parliament each session are subject to the ‘draft negative’ procedure.
- An instrument is laid in draft and cannot be made if the draft is disapproved within 40 days.
- The procedure to disapprove an SI is the same as that followed for the ‘made negative’ procedure.
(vi) Strengthened scrutiny procedures
- 16 Acts of Parliament contain a power which is subject to a higher level of parliamentary scrutiny than the affirmative procedure. These powers usualy confer upon a minister a significant power to amend primary legislation (a Henry VIII power).
- The highest level of scrutiny is the super-affirmative procedure which applies to the exercise of certain powers in the Legislative and Regulatory Reform Act 2006, the Localism Act 2011 and the Fire and Rescue Services Act 2004. The remedial order procedure applies to powers in the Human Rights Act 1998. The enhanced affirmative procedure applies to powers in the Public Bodies Act 2011 and other, not dissimilar forms of scrutiny procedure, exist in 11 other Acts.
- Among the key features of strengthened scrutiny are: A requirement to consult before laying a draft Order (commonly for 60 days or 12 weeks).
- A requirement to lay supporting documents (e.g. explanatory information relaying the nature and results of the consultation).
- The relevant scrutiny committees in each House having the power to determine the level of parliamentary scrutiny (i.e. to upgrade from negative to affirmative or super-affirmative).
- An extended period of consultation and scrutiny beyond the average 4-6 weeks taken for a regular affirmative SI.
- A power for the relevant scrutiny committee in each House to veto the Order (only the super-affirmative procedure).
- A statutory obligation for ministers to consider the recommendations of the relevant scrutiny committee in each House before laying the Order.
- The SI is laid initially as a proposal or a draft Order.
Can Parliament amend Statutory Instruments?
- Statutory Instruments, with just a few exceptions, cannot be amended by Parliament. This is because it would undermine the principle of delegation of power to Ministers.
- Both Houses of Parliament are therefore confronted with an unpalatable ‘take it or leave it’ proposition: accept a Statutory Instrument even if they believe it is fundamentally flawed, or reject it entirely even if some elements are acceptable. This does nothing to encourage effective scrutiny and to engage Members in the process.
Has Parliament ever rejected a Statutory Instrument?
- Statutory Instruments are rarely rejected. Since 1950 the House of Commons has rejected just 11 instruments and the House of Lords has rejected 5 (although the House has also chosen to delay a further 2 instruments). This equates to 0.01% of the total number of SIs considered since 1965.
- The House of Commons last rejected an SI in 1979. The House of Lords last rejected an SI in 2012. Since then the Upper House has voted to delay two SIs.
- The Parliament Act does not apply to delegated legislation and therefore, unlike primary legislation, rejection in the House of Lords cannot be over-ridden by the Commons after delay. However in practice, Peers are mindful of the primacy of the elected House and therefore use their veto power sparingly.
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