Most of the UK’s general public law is made not through Acts of Parliament but through delegated legislation. It is crucial to the effective operation of government and affects millions of people each day. But despite its volume and importance, remarkably little attention is paid to it.
What we are doing
In late 2014 we published the first comprehensive study of the delegated legislation system in over 90 years. Our report, The Devil is in the Detail: Parliament and Delegated Legislation, opens up the process, exploring how decisions are made about what goes in to primary and what goes in to delegated legislation, and who makes them. It looks at how the process works in both Houses of Parliament and, using legislative case studies, illustrates different aspects of the flaws and defects in the current system.
While its importance and centrality to the process of law-making is not in doubt, the process by which delegated legislation is drafted in Whitehall and scrutinised in Westminster is deeply flawed.
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. But in recent years, 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 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.
The scrutiny process for delegated legislation has become unnecessarily complex such that most MPs simply don’t understand it. And the procedures – particularly those for praying against negative instruments and Delegated Legislation Committee debates for affirmative instruments – are illogical and weak. The process confuses and intimidates in equal measure, serving to wrap it in a fog of obscurity.
Business and civil society groups with a real interest in a particular subject are often baffled by the process. The role and interests of the public are almost completely ignored. The complexity of the process, the lack of understanding among parliamentarians and the public, the uneven application of processes and procedures, and the extent to which these now undermine the principle and time-saving purpose of delegation all point to a system that is not fit for purpose.
Our report concludes that the defects in the system are now so serious that piecemeal reform of existing processes and procedures is likely to exacerbate rather than ameliorate the problems. It calls instead for a comprehensive inquiry into the legislative process to be established to look at the issues afresh and in light of developments in relation to the devolution settlement and EU legislation.
Widely regarded as the authoritative text on delegated legislation, The Devil is in the Detail is used as a procedural reference guide by parliamentary clerks and officials.
In 2014, the report’s co-authors appeared before the House of Commons Procedure Committee to give evidence on the subject and in 2016 they appeared before the House of Lords Secondary Legislation Scrutiny Committee to give evidence on Lord Strathclyde’s review into the powers of the Upper House in relation to delegated legislation. Subsequent reports by the House of Lords Delegated Powers and Regulatory Reform Committee and the House of Lords Constitution Committee quoted extensively from their evidence and The Devil is in the Detail research.