This 2014 book was the first comprehensive study of the delegated legislation system at Westminster in nearly a century. The book opens up the process, through the presentation of detailed research and case studies; concludes that the current system is broken; and sets out proposals for comprehensive reform.
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.
- 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
- Context and history: delegated legislation through the years
- The life-cycle: delegating power in the parental Act
- The life-cycle: Statutory Instruments
- Public Bodies Act 2011
- Draft Deregulation Bill 2013
- Localism Act 2011
- Welfare Reform Act 2012
- Policing and Crime Act 2009
- Banking Act 2009
- The efficacy of the parliamentary scrutiny process
Enjoy reading this? Please consider sharing it
Can the government rely on provisions in national security legislation to refuse to provide unredacted documents to a House of Commons committee when ordered to do so by a resolution of the House? Should, or can, resolution of this question be made by the courts, or only within the House? In a current case, Canada’s House and courts face these questions.
Whether football ‘comes home’ on 11 July or not, the holding of the UEFA European Football Championship – like other major sporting events – has been managed in part by using Statutory Instruments, the most common form of delegated legislation.
In a recent report the House of Commons Privileges Committee recommended the creation of a new criminal offence to deal with the rare problem of recalcitrant select committee witnesses. The proposal is narrow and looks workable. However, it remains controversial, and the Committee has invited further views, with final proposals expected later in 2021.
On 20 May 2021 MPs will debate the Restoration and Renewal of the Palace of Westminster, laying down a marker about their future expectations for the project. We set out why MPs should support decant and focus on the long-term legacy.
MPs are debating motions on ‘made negative’ Statutory Instruments (SIs) on three successive days this week. While the debates will give a last-minute boost to the government’s record for the handling of such SIs in the 2019-21 session, they also highlight how the government’s control of time undermines MPs’ role in scrutinising such Instruments.
Most of the UK’s general public law is made not through Acts of Parliament but through delegated legislation in the form of Statutory Instruments. What is delegated legislation and how does the parliamentary scrutiny system for this legislation work?