The problems with the delegated legislation system have long been known but Brexit and Covid-19 have illuminated them in stark terms. Our Review will lay out a comprehensive plan to address them.
There are problems with both the delegation of powers in Bills and the scrutiny of the Statutory Instruments (SIs) that arise from those powers.
Problems with the powers
The powers given to Ministers to make delegated legislation are frequently too broad.
- Too many Bills are now ‘skeleton’ Bills that contain powers rather than policy and so cannot be properly scrutinised by Parliament.
- The boundary between what should go in primary legislation and what should go in delegated legislation is blurred.
- When Parliament accepts controversial powers in a Bill, it creates a precedent that makes it politically easier for the government to argue in favour of taking similar powers in subsequent Bills – creating a ‘normalisation’ or ‘ratchet’ effect.
- Broad powers can be used in the future in unexpected ways that Parliament did not anticipate at the time it granted them.
- ‘Henry VIII powers’ – which enable Ministers to amend or repeal primary legislation by SI – are common, despite their potential for serious constitutional implications.
Problems with the scrutiny of Statutory Instruments
- There is no sensible correlation between the content of an SI and the scrutiny procedure to which it is subject.
- Parliament has no power of amendment, and the risk of an SI being rejected is negligible.
- Government control of the House of Commons agenda restricts MPs’ ability to secure debates on SIs of concern.
- Scrutiny procedures are superficial and often a waste of time, particularly in the House of Commons.
- There is no penalty for poor-quality Explanatory Memoranda and other supporting documentation.
- The system and its terminology are confusing and overly complex.
Reform proposals have been made over the years by a range of parliamentary committees. Despite this, the essential architecture of the system has remained largely unchanged, particularly in the House of Commons, since the Statutory Instruments Act was passed in 1946.
Delegated legislation has recently found itself at the centre of contentious political debates, not least around Brexit and Covid-19. And it will remain the principal legislative vehicle for delivering the government’s agenda in critical policy areas in the coming years. Delegated legislation is not going to fade again into the background.
New Acts for agriculture, customs, fisheries and immigration are replete with broad delegated powers. The same seems set to apply to further major Acts still to reach the statute book, on the environment, healthcare, borders, subsidies and online harms, for example. Trade agreements will require implementation via SI. And plans for regulatory reform, and the review of retained EU law, herald the prospect of more legislation and a further raft of SIs.
The parliamentary scrutiny process for delegated legislation is thus poised to be an ongoing focus of political controversy and constitutional concern.
We believe that delegated legislation is a necessary feature of modern governance: it is not necessary, possible or even desirable to make legislative changes solely via primary legislation. Since we are to have delegated legislation, it is essential that it is carefully prepared, properly evidenced, and subject to meaningful scrutiny.
We want to see changes that:
- Help parliamentarians to ‘sort the wheat from the chaff’ and so focus their time and scrutiny on those SIs that matter most, legally and politically.
- Enable today’s parliamentarians, rather than an Act passed sometimes years ago, to decide on the scrutiny process that applies to a Statutory Instrument.
- Enhance and better deploy the resources available to parliamentarians, particularly MPs, to support their scrutiny.
- Bring the rules around consultation and publication of SIs into the digital age, including through a new Statutory Instruments Act.
Benefits for government
- Better management of the SI production process and eased pressure on resources.
- Improved relations with both Houses of Parliament through a more constructive scrutiny process.
- Reduced prospect of judicial review. The Faulks Review of judicial review noted that respect by judges for Parliament was “rendered easier where there is evidence of real parliamentary scrutiny”.
Benefits for Parliament
- A more responsive scrutiny process that better enables MPs to represent their constituents’ concerns.
- Better use of MPs’ time so that it is no longer wasted in ineffectual Delegated Legislation Committees.
- Greater access to expert advice and support.
- Enhanced reputation. Reform would send a powerful message about the health of the political system and the effectiveness of our MPs.
Benefits for the public
- Better law: improving the quality of SIs is in everyone’s interest.
- Delegated legislation is the ‘law of everyday life’; when it is bad, it can have a devastating impact.
- Better scrutiny procedures alone cannot fix a deficient policy development process, but they can enhance the prospect of getting legislation that is “necessary, effective, clear, coherent and accessible”, all of which the Office of the Parliamentary Counsel describes as the classic tests of good law.
Throughout 2022, we will be holding a series of public and private events to explore the key issues and publishing regular briefings, discussion papers and reports setting out our latest ideas, research and data analysis.
We welcome the views of parliamentarians, officials and ‘end-users’ of delegated legislation on some of the key questions we are grappling with. For example:
- How can reform help government better manage and resource the delivery of its SI programme?
- Where should the boundary lie between what goes in primary and what goes in delegated (or secondary) legislation?
- Should Parliament be able to amend delegated legislation?
- What provisions should be included in a new Statutory Instruments Act?
- What resources and support would enable parliamentarians to scrutinise SIs more effectively?
- Could a reformed scrutiny process facilitate more law-making through delegated legislation?
If you have ideas about ways in which the system could be improved or have evidence about how the delegated legislation system works in practice – good or bad – then please do get in touch. We want to hear from you. Please contact Dr Tom West, Delegated Legislation Review Manager (firstname.lastname@example.org).