| (i) Delegated Legislation Committees: superficial scrutiny | In your speech you were rightly critical that MPs debated the Carbon Budget Order 2021, in a Delegated Legislation Committee (DLC), for just 17 minutes. But our research shows that this is normal: the average length of a DLC meeting is 26 minutes, with some lasting under a minute. In a similar vein, only six of the 17 MPs appointed to the DLC attended the meeting; and only the Minister and Opposition spokesperson spoke. The superficiality of this scrutiny reflects the nature of DLC debates: because SIs cannot be amended, and DLC debates are held on ‘take note’ motions, these debates are without political incentive or consequence for MPs on the Committee. Procedurally, DLC debates are unconnected to the whole House’s subsequent decision on the SI and typically take place too late before the House’s decision for any concerns raised to be properly addressed. | Our proposed reforms would incentivise and facilitate more in-depth and better-targeted scrutiny by MPs of those SIs that merit it, by: (i) Replacing the current system of pre-determined scrutiny procedures with one in which MPs have a say in identifying the SIs that they wish to debate, through ‘triage’ of SIs by a new Joint Secondary Legislation Sifting Committee (JSLSC). The JSLSC could swiftly identify most SIs as unimportant or issue-free, so preventing the unnecessary DLC debates that sometimes take place on uncontroversial measures at present and allowing the Government to make and bring these SIs into force quickly. This would leave parliamentarians – and Ministers – to focus their time and resources on SIs with significant economic and policy implications that merit further scrutiny and debate, such as a future Carbon Budget Order. (ii) Replacing DLCs with permanent, policy-area-based Regulatory Scrutiny Committees (RSCs) that would scrutinise only the SIs sifted to them by the JSLSC, and that could do so in a tailored format depending on the SI. If an RSC wished to hold a debate on an SI, it could do so on an amendable motion, giving MPs more incentive to engage. |
| ii) Scrutiny of policy: inadequate access to research support and expert analysis | In your speech you indicated that, the next time the House of Commons debates a Carbon Budget Order, you want to furnish MPs with more information about how the Government plans to meet the Budget requirements. However, in the current unchanged system, there is no mechanism to enable MPs to analyse and make effective use of any such information when debating an SI. DLCs are temporary committees which are often appointed only days (at most) before a debate and which have no permanent staff support. The Carbon Budget Order 2021 had a 76-page Impact Assessment, which represents a welcome (and sadly quite rare) level of Government information; but it is hard for MPs to analyse this type of often-dense financial, legal and technical documentation without expert support, especially in the short timescale required. The situation is not necessarily any better if an SI is debated in the Chamber. | A new Parliamentary Office for Statutory Instruments (POSI), established as a joint department of the two Houses and headed by an Officer for Statutory Instruments, would provide official support to both the Joint Secondary Legislation Sifting Committee (JSLSC) and the permanent Regulatory Scrutiny Committees (RSCs). The POSI would produce reports on SIs that would be available to Members of both Houses. This would raise significantly the visibility, status and resourcing of SI scrutiny, as well as streamline the current system of SI scrutiny committees and their staff across the two Houses. |
| iii) House of Commons scrutiny: a democratic deficit compared to the Lords | More Peers participated in the House of Lords’ debate on the Carbon Budget Order 2021 than did MPs in the House of Commons’ equivalent. The House of Lords also debated the SI for longer. Partly, this reflects the fact that the Upper House has a dedicated scrutiny committee to sift and scrutinise all SIs, whereas the House of Commons does not. The work of the House of Lords Secondary Legislation Scrutiny Committee (SLSC) ensures that all Peers have access to reports exploring the policy merits of SIs. In the case of the Carbon Budget Order 2021, the SLSC had drawn the SI to the special attention of the House, on the grounds of its importance, and flagged in its report that there were “significant challenges” involved in meeting the sixth carbon budget, as identified in the Impact Assessment. During the Lords committee debate, a number of Peers expressed serious reservations about the implications of the Order, particularly the absence of policy detail about the way in which the Government proposed to achieve its objectives. The fact that the elected House has no such committee, and MPs have no access to analysis of their own of the policy merits of SIs, represents a significant democratic deficit. In contrast to their elected counterparts, Peers are also able to move amendments to approval motions for SIs. | Our proposals would plug the House of Commons’ democratic deficit on SIs by: (i) Giving the elected House the benefit of its own SI scrutiny committees, in the shape of the new permanent Regulatory Scrutiny Committees (RSCs). (ii) Making motions to approve SIs in the House of Commons amendable, so that MPs could propose changes to an SI before it is approved. This would avoid the difficulties that would arise if MPs were able to amend the text of SIs directly, while allowing MPs to express the concerns they have about an SI that would need to be addressed before it was made into law. This would incentivise scrutiny by MPs and provide an opportunity to rigorously test the Government’s proposals. |
