The Devil is in the Detail: Parliament and Delegated Legislation

Most of the UK’s general public law is made not through Acts of Parliament but through delegated (or secondary) legislation, generally in the form of Statutory Instruments (SIs). Delegated legislation is crucial to the effective operation of government, from the social security system to immigration rules, legal aid to food labelling, rubbish bin collections to the national curriculum. But despite the volume and importance of such legislation, remarkably little public and media attention is normally paid to it.

‘The Devil is in the Detail: Parliament and Delegated Legislation’ opens up the delegated legislation process. It explores how, and by whom, decisions are made about what goes into primary legislation and what into secondary legislation. It looks at the evolution of delegated legislation, and sets out in detail how the delegated legislation process works in both Houses of Parliament. It also examines a number of legislative case studies that illustrate different aspects of the flaws in the current system.

Recommendations

• An independent expert inquiry into the legislative process be established.
• A central co-ordinating unit in Whitehall be set up to plan and promote awareness of the production and implementation of upcoming SIs across government.
• Introduction of reforms to the scrutiny system including: the lessening of government control over annulment debates; reform of Delegated Legislation Committees along the lines of the European scrutiny committee system in hte House of Lords; introduction of a new conditional amendment provision; rationalisation of the system of strengthened scrutiny procedures.
• The House of Lords should make greater, albeit judicious, use of its power of veto in the future.
• The remit of the Delegated Powers and Regulatory Reform Committee be changed so that it can report on bills immediately, when they begin their passage thorugh one of the Houses, whether that be Lords or Commons.
• A Legislative Standards Committee be estbalished, ideally on a bi-cameral basis, to assess bills against a st of technical preparation standards that must be met before a bill is introduced.
• The House of Commons should observe the ‘scrutiny reserve’ that exists in the House of Lords in relation to decisions of the Joint Committee on Statutory Instruments.
• The government should be required to respond to all reports from the Delegated Powers and Regulatory Reform COmmittee, the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee.
• It should be a requirement that defective SIs are remedied within four weeks.
• Parliament should undertake a review of the language and terminology used in the delegated legislation process, as well as the presentation of information about the process on the parliamentary website in order to improve curation of material with a view to making the process more accessible and understandable.
• The government should review the Statutory Instruments Act 1946 with a view to replacing it with new legislation that takes account of modern forms of digital communication. It should set out clear standards for consultation on and publication of Statutory Instruments in the future.

Table of contents

1. Introduction
2. Context and history: delegated legislation through the years
3. The life-cycle: delegating power in the parental Act
4. The life-cycle: Statutory Instruments
5. Public Bodies Act 2011
6. Draft Deregulation Bill 2013
7. Localism Act 2011
8. Welfare Reform Act 2012
9. Policing and Crime Act 2009
10. Banking Act 2009
11. The efficacy of the parliamentary scrutiny process
12. Conclusion

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