Most of the UK’s general public law is made not through Acts of Parliament (primary legislation) but through delegated legislation (also referred to as secondary or subordinate legislation).
Acts of Parliament provide a framework into which much of the real detail and impact of the law will subsequently be added through delegated legislation.
The majority of delegated legislation is made in the form of Statutory Instruments (SIs) that exist within that framework of powers delegated to ministers by Parliament in the parental Act. They can be used to fill out, update, or sometimes even amend primary legislation without Parliament having to pass a new Act.
The scope of delegated legislation varies considerably, from the very technical SI that is procedural in character to the wide-ranging power that can, for example, abolish quangos.
Unlike primary legislation, delegated legislation is subject to judicial review.
The journey involved in making delegated legislation, from idea to implementation is explained in this infographic.
Why have successive governments been criticised for using delegated legislation?
There is a fear that Ministers are increasingly seeking to use SIs rather than Bills to achieve their policy objectives as these receive much less scrutiny than primary legislation, and take up less parliamentary time.
Traditionally, the justifications for using delegated legislation have been the need to elaborate complex and technical detail that cannot be easily done on the face of a Bill; the need for flexibility and adaptability; the advantage of involving external expertise; and the capacity to act quickly in times of crisis and emergency.
The acceptance of the system of delegated legislation has been predicated on its reasonable use and application by ministers coupled with trust in Parliament’s system of scrutiny.
However, the use of delegated legislation by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail.
There is concern that delegated legislation is now being used for administrative convenience and often in circumstances where governments have not fully pinned down the detail of policy proposals.
There has been such an expansion in the scope and application of powers and procedures that a precedent could arguably be found to justify almost any form of delegation a minister might now desire.
How much delegated legislation are we talking about?
Over 3,000 SIs are produced each year and on average Parliament scrutinises about 1,200 of them.
Between 1950 and 1990 the number of individual Sis produced each calendar year rarely rose above 2,500. From 1992 onwards, however, it has never dipped below 3,000.
A range of factors – the expansion of the regulatory state, the wide range of social security provision, the rapidly changing nature of technology, the growth in EU legislation – have all contributed to a significant increase in the volume, technicality and complexity of delegated legislation in recent years.
What happens to those SIs that are cnsidered by Parliament
Some SIs are simply laid before Parliament and not subject to scrutiny.
Some SIs come into effect – are the law of the land – before Parliament actually looks at them. In these circumstances defective legislation can sit on the statute book until such time as the government revokes the SI and lays an amended version.
For those SIs that are subject to parliamentary scrutiny, they are assigned to one of three forms of procedure: the negative procedure, affirmative procedure, or a strengthened or enhanced (sometimes referred to as super-affirmative) procedure.
There are no fewer than 16 variations on these three procedures, resulting in a system of scrutiny that is overly complex and confusing.
Can Parliament amend Statutory Instruments?
Statutory Instruments, with just a few exceptions, cannot be amended by Parliament. This is because it would undermine the principle of delegation of power to Ministers.
Both Houses of Parliament are therefore confronted with an unpalatable ‘take it or leave it’ proposition: accept a Statutory Instrument even if they believe it is fundamentally flawed, or reject it entirely even if some elements are acceptable. This does nothing to encourage effective scrutiny and Member engagement with the issues.
Statutory Instruments are rarely rejected. Since 1950 the House of Commons has rejected just 11 instruments and the House of Lords has rejected 7 (2 of which were decisions to delay). This equates to 0.01% of the total SIs considered since 1965.
The Parliament Act does not apply to delegated legislation and therefore, unlike primary legislation, rejection in the House of Lords cannot be over-ridden by the Commons after delay. However in practice, Peers are mindful of the primacy of the elected House and therefore use its veto power sparingly.
Why should we be concerned about House of Lords scrutiny of SIs?
Following the House of Lords decision to delay the controversial Tax Credit regulations in October, the Strathclyde Review was set up to consider ‘how to secure the decisive role of the elected House of Commons in relation to its primacy on financial matters, and secondary legislation’.
However, if the House of Lords right to veto SIs is removed, this will empower the government, not the House of Commons.
A heavy burden of scrutiny responsibility falls on the House of Lords in large part because House of Commons procedures and the engagement of MPs is wholly inadequate.
The scrutiny process for delegated legislation has become unnecessarily complex such that most MPs simply don’t understand it. And the procedures - particularly those for praying against negative instruments and Delegated Legislation Committee debates for affirmative instruments – are weak. Many of the MPs we interviewed simply weren’t aware of the practicalities relating to the scrutiny of statutory instruments.
In contrast the House of Lords committees are more engaged in the process, more influential, and Peers generally have more appetite for the detail and technical scrutiny than most MPs.
The existence of a veto power gives purpose and leverage to the Lords’ scrutiny committees and judicious use of the power can have an impact in Whitehall, forcing departments to be more attentive. Remove it, and the influence of the House of Lords will be neutered to the government’s advantage unless steps are also taken to improve scrutiny of SIs by the House of Commons.
Given the inadequate nature of Commons scrutiny of SIs there are good reasons for enhancing the Lords scrutiny of delegated legislation not curtailing it.
Has the House of Lords broken convention not to veto SIs
Some have suggested that there is a convention that Peers will not reject an SI but this is not the case. A convention used to exist between the two frontbenches (but not the crossbenchers and Liberal Democrats) not to oppose regulations for which there was support in the Commons but this broke down in 1999 following the decision to abolish the hereditary peers, as was explicitly made clear by former leader of the House Lord Strathclyde who declared the convention dead.
What needs to change?
The delegated legislation process is no longer fit for purpose.
The way in which Parliament deals with delegated powers is neither systematic nor consistent. The Hansard Society’s research shows that too much of the process relies on ‘gut feeling’ and ‘judgement’ rather than objective criteria.
An incremental approach to reform has created a patchwork of procedures, resulting in a system of scrutiny that is overly complex and confusing and often illogical.
The language – ‘made’ and ‘laid’, ‘negative’, ‘affirmative’, and ‘super affirmative’, ‘prayers’ and ‘Henry VIII powers’ – is confusing and undermines parliamentary and public understanding of the legislation. Many parliamentarians openly admit they don’t understand them.
Further patchwork reform risks making the situation worse. It is impossible to separate consideration of delegated legislation from that of primary legislation. The issues are now so serious that an independent expert inquiry is needed to review the entire legislative process looking at:
How both primary and delegated legislation is prepared in Whitehall and scrutinised at Westminster;
Issues of principle and practice, and where the balance should lie between administrative and political convenience and good legislative process;
Rationalisation of scrutiny procedures – exploring what criteria and principles define what members want to look at again in the area of delegated legislation and how this can best be achieved;
Whether the burden on Members to scrutinise delegated legislation should be reduced through the introduction of individuals or independent advisory bodies with genuine technical expertise in particular policy areas;
Whether the scrutiny system should be re-designed so that the greater burden of technical scrutiny work falls on the House of Lords in future.
Delegated legislation by the numbers... The 2015 session
Since the General Election in May, 384 SIs have been laid before Parliament. A further 303 SIs were ‘carried over’ from the previous Session.
85% of these SIs have been subject to the negative procedure, 12% the affirmative procedure.
Since May, Parliament has rejected 2 instruments. Both defeats were in the House of Lords and both times the Lords ruled to delay the instruments rather than reject them outright.
12 prayer motions have been tabled (9 in the Commons, 3 in the Lords). Only 4 of these were debated.
Peers have tabled and debated non-fatal motions for 13 SIs since May.
In the current session, 15 SIs have been withdrawn and 27 ‘correcting instruments’ have been laid. Correcting instruments are issued to correct an earlier, defective SI.
There have been 66 EU-based SIs in this Session.
What are the procedures?
(I) The Negative Procedure
The vast majority (74% in 2013-14 Session) of Statutory Instruments considered by Parliament are subject to the negative procedure.
Instruments subject to this procedure become law on a stated date unless a motion passed in either House annulling the instrument. This motion is known as a ‘prayer’. If a member of either House wishes to reject a negative instrument they have to do so within 40 days of the instrument being laid before Parliament.
In the House of Commons, MPs table a prayer by putting it down as an Early Day Motion. If time is allocated, MPs have up to 90 minutes to debate the instrument.
In the House of Lords, time is usually found for debate on a prayer motion. This debate is not subject to a time-limit. Peers can either seek to reject the instrument or table a non-fatal motion, critical of the instrument without annulling it.
(II) The Affirmative Procedure
The most substantial and important pieces of delegated legislation are subject to a more stringent form of control and require the active approval of both Houses of Parliament before they can come into effect.
In the House of Commons, affirmative instruments are referred to a Delegated Legislation Committee for debate, unless a motion for the debate to be held in the Commons chamber is tabled. Debates last no longer than 90 minutes and are conducted on a ‘consideration’ motion. Following debate in committee, an approval motion is put formally to the House without debate on a separate day.
In the House of Lords, a motion to approve an affirmative instrument can be taken in either Grand Committee or on the Floor of the House. Peers can express their opposition or concern by making an amendment to the approval motion or by tabling a separate motion, effectively withholding the agreement of the House. As was the case in October when Peers delayed approval of the Tax Credit regulations.
(III) The Strengthened Scrutiny Procedures
There are currently 10 Acts of Parliament that provide for certain powers contained within them to be subjected to a higher level of parliamentary scrutiny than the affirmative procedure. They confer upon a minister a significant power to amend primary legislation (often referred to as a Henry VIII power). Parliament therefore has the opportunity to comment and recommend changes to proposals under these powers and in some cases to veto the proposed instrument.