Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.
In his recent speech about Net Zero the Prime Minister made clear his desire to “change the way our politics works”, highlighting the cursory scrutiny given to the Carbon Budget Order in 2021. We have written to the PM to explain how our proposals for reform of the delegated legislation system are critical if his objective of ensuring better debate and scrutiny of significant policy proposals is to be achieved.
Director , Hansard Society
Dr Ruth Fox
Director , Hansard Society
Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.
In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.
In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.
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Dear Prime Minister
A new approach to politics and Net Zero
Following your recent speeches on 20 September (about Net Zero) and 4 October (Party Conference) in which you made clear your desire to “change the way our politics works” and see more debate and “fundamental scrutiny” of the big challenges facing the country, I am writing to ensure that you are aware of the Hansard Society’s proposals for reform of the parliamentary procedures for Statutory Instruments (SIs).
In your 20 September speech you noted the cursory consideration given to the Carbon Budget Order 2021 (SI No.750/2021). As in the case of the Carbon Budget Order, many of the major long-term issues facing the country are addressed, at least in part, through delegated rather than primary legislation.
The Hansard Society is shortly to publish proposals for wholesale reform of the delegated legislation scrutiny system at Westminster that, if implemented, would enable much more in-depth and better-informed debate and scrutiny of the most important Statutory Instruments by MPs, whilst allowing the majority of SIs – those that are less politically salient and controversial – a simpler passage. Unless such reforms are implemented, the next Carbon Budget will be subject to the same unsatisfactory process as its 2021 predecessor, and the change that you want to see will not be realised. This letter therefore seeks your support for our proposed reforms.
The table at the end of this letter summarises how the Hansard Society’s proposals, if they were implemented by then, would make the process for the next Carbon Budget fulfil your ambition that it be more responsible, accountable and sustainable.
Hansard Society Delegated Legislation Review
The Hansard Society’s reform proposals arise out of our Delegated Legislation Review which we have been conducting with funding from The Legal Education Foundation and the support of a cross-party advisory panel. Steve Baker MP and subsequently the Rt Hon Mark Harper MP both served on the panel until they had to resign on their appointment as Government Ministers last year. The fact that our proposals enjoy the support of a panel which also included Dame Angela Eagle MP and Kirsty Blackman MP testifies to the fact that MPs from all sides of the House can agree on the unsatisfactory nature of the current system.
Some of our proposals could be trialled or implemented immediately, via changes to Standing Orders. Some will require legislation, in the form of a new Statutory Instruments Act, to replace the existing legislation which is now 77 years old. A new Bill would be likely to be a short one, perhaps particularly suitable for introduction in the final Session of a Parliament. However, like its 1946 predecessor, its effects could be felt for decades.
I and members of our Advisory Panel would of course be happy to meet with you and your officials to discuss our proposals in more detail.
I am copying this letter to the Leader and Shadow Leaders in both Houses, and to the Chairs of the committees in both Houses that deal with scrutiny of Statutory Instruments, parliamentary procedure and the Carbon Budget Order. I will also be sharing it with the Hansard Society’s members and supporters.
As you highlighted in your speech, the price of poorly-conceived and poorly-scrutinised legislation is paid by citizens across the country who are subject to its detrimental effects. Reform of the delegated legislation system is critical if your objective of ensuring better debate and scrutiny of policy proposals with significant implications for the nation’s economy and society are to be achieved.
Thank you in advance for your consideration of this matter. I look forward to your response.
Dr Ruth Fox
How would the Society's proposed reforms to delegated legislation make a difference?
|(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.|
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