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Parliament is under-scrutinising swathes of important law. But the problem can be fixed

18 Nov 2021
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Delegated legislation may not be glamorous but it is essential to how our democracy works. Time to treat it accordingly.

Dr Tom West, Researcher, Hansard Society
,
Researcher, Hansard Society

Dr Tom West

Dr Tom West
Researcher, Hansard Society

Tom joined the Hansard Society in July 2021 and is focussed on its programme of work on how Parliament legislates, in particular being responsible for the co-ordination of its Delegated Legislation Review. Tom conducts research for the Society on legislative processes and procedures and supports its collaboration and partnership with other stakeholders and networks active in the field. Previously, Tom was employed at the UN in the secretariat of the Aarhus Convention Compliance Committee, an international law body tasked with assessing States’ compliance with their obligations relating to transparency, participation and justice in environmental decision-making. He has also given evidence to Parliamentary Committees and has engaged with the design and passage of new legislation through his role at environmental law NGO ClientEarth, where he led their work in response to Brexit. During that time he was a member of BIICL’s Expert Working Group on the EU (Withdrawal) Bill and the Rule of Law. Having first studied for a BSc in Mathematics at the University of Warwick, Tom then turned to law via an MSc in Law and Environmental Science and a PhD in international human rights and environmental law at the University of Nottingham, which he completed in 2017.

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This piece was first published in Prospect online on 10 November 2021.

“It’s pretty bloody boring to sit on a statutory instrument committee if you could be on Have I Got News for You,” Labour MP Angela Eagle remarked at the recent launch of the Hansard Society’s Delegated Legislation Review. The comment was made with more than a little personal experience and at least half a raised eyebrow as MPs debated holding ministers to account for the hundreds of statutory instruments that are laid before parliament each session.

But the discussion over the course of the event laid bare an important truth: with their time under pressure from constituency, party and parliamentary obligations, MPs derive very little professional advantage from prioritising their constitutional duty as legislators. This holds particularly true for their scrutiny of delegated legislation—the rules and regulations found in statutory instruments made under powers entrusted by parliament to government ministers.

Eagle was a member of the European Statutory Instruments Committee during the Brexit process, an experience she described as like being “sent to Alcatraz”: thankless work scrutinising hundreds of often highly technical SIs that ensured the statute book was ready for our departure from the EU. There is no political reward for such mind-numbing legislative graft away from the spotlight. For better or worse, the hard slog of legislative scrutiny seldom hits the headlines, so constituents, party colleagues and journalists know little about the work that MPs are doing on the legislative committee corridor.

The multi-faceted role of an MP today is highly demanding, running the gamut from local constituency social worker to national legislator, all in the face of round-the-clock demands from the media and the public. How MPs choose to spend their time and what they choose to prioritise therefore involves difficult choices and trade-offs.

But nowhere is the mismatch between incentive, impact and importance greater than with delegated legislation.

Understandably, scrutiny of the latest set of technical regulations on egg labelling, aircraft safety or reporting requirements for children in care is not the most enticing of tasks: after all, who will ever know that their MP stayed up late checking the legal cross-references and the impact assessment?

But these statutory instruments, and their scrutiny, matter. They are the legislation of everyday life, affecting millions of citizens and organisations across the country. A minister’s ability to put in place lockdowns and other wide-ranging restrictions at the stroke of a pen during the pandemic saw the issue receive more attention than usual. But pre-pandemic (and indeed pre-Brexit), the inadequacies in the system for scrutinising delegated legislation in the House of Commons in particular were already being lamented by constitutional commentators and parliamentary committees alike.

The problems are manifold: there is no sensible correlation between the content of an SI and the level of scrutiny it is subjected to. Government control of the House of Commons agenda restricts MPs’ ability to secure debates on SIs. Scrutiny procedures are superficial and often a waste of time. There is no penalty for poor-quality supporting documentation. And the variety of procedures and their terminology is confusing and overly complex. Taken together, these factors lead to a system devoid of any meaningful oversight of ministerial lawmaking.

An MP’s job is also made harder by the lack of resources to support their work. Compared to the resourcing of scrutiny of policy (via subject-specific select committees) and of public finances (via the House of Commons Scrutiny Unit and the National Audit Office), the resourcing of the legislative process in the Commons is poor.

That’s why the Hansard Society is developing detailed proposals for a new scrutiny system for this important body of law. Over the course of the next year, we will be looking at the different ways in which the system could be improved for parliament, for government and for the public.

But any new system has to work with the grain of politics. Lawmaking is not a purely technical exercise and a technocratic solution is no solution at all. Legislative scrutiny is an inherently political process and needs informed and engaged politicians at the heart of it. A better scrutiny system will be one that provides MPs with the tools they need to assess, understand and address the issues that matter most to their constituents.

It will also incentivise MPs to be active and constructive when reviewing delegated legislation, confident in the knowledge that their efforts will not be in vain. Scrutiny of legislation that affects us all shouldn’t be such a burden that MPs feel it’s the political equivalent of being sent to Alcatraz.