by Ruth Fox & Joel Blackwell
Following the Tax Credits regulations vote last October1, the Prime Minister asked Lord Strathclyde to conduct a ‘rapid review’ of Statutory Instruments (SIs) to consider ‘how more certainty and clarity could be brought to their passage through Parliament’2 and the primacy of the House of Commons assured.
Just over a year ago we published the first comprehensive study of the SI system for nearly 80 years, ‘The Devil is in the Detail: Parliament and Delegated Legislation’.3 In responding to Lord Strathclyde’s report we are thus able to draw on three years research. Since the start of this new parliamentary session we have also begun to track every SI that is subject to parliamentary scrutiny, enabling us to maintain the most comprehensive and up to date monitor of delegated legislation available each week.
This response to the Strathclyde Review is not a comprehensive analysis of every aspect of the report; rather, it focuses on what we consider to be the key elements of concern, which we hope will inform the debate about it in the House of Lords.
This is no way to undertake reform – an independent inquiry into the legislative process is required
Our research illustrates that the process by which delegated powers are provided in Acts of Parliament and the scrutiny procedures accorded to them is neither systematic nor consistent. Any distinguishing line between legislative principle and detail has long since been obscured and the use of delegated legislation now stretches beyond the boundary of reasonableness and acceptability.
The Strathclyde Review implicitly recognises that there is a problem noting that it would be ‘appropriate for the Government to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument’.4 However, this fine declaratory statement is completely meaningless without any action attached. How, exactly, does Lord Strathclyde propose that the government do this?
The complexity of the delegated legislation process, the lack of understanding amongst parliamentarians and the public, and the uneven application of processes and procedures all point to a system that is no longer fit for purpose. Indeed, the problems with the system are now so serious that further patchwork reforms risk augmenting rather than ameliorating the difficulties.
An independent expert inquiry is needed along the lines of that undertaken in 1975 by David Renton on the ‘Preparation of Legislation’.5 This should 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 practice;
- rationalisation of scrutiny procedures;
- 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;
- how the scrutiny system might be redesigned and how the burden of work and responsibility might be aligned across both Houses.
The inadequacy of House of Commons procedures
The Report seeks, through changes to Lords powers, to enhance the role of the elected House of Commons in the SI process. However, this will not happen unless Commons procedures are reformed, and the engagement of MPs in the scrutiny of delegated legislation is enhanced. Given the inadequate nature of Commons scrutiny, any reform that curtails the role of the House of Lords in relation to delegated legislation risks turning an already deeply flawed process into a farce. Consideration, in isolation, of the role of just one House in the delegated legislation process runs the risk of doing more harm than good. Changes to the Lords should only be made once full consideration has been given to the role of the House of Commons.
In the elected House the scrutiny process 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.
Thus, in The Devil is in the Detail we recommended a number of reforms, including:
- A new, clearer annulment motion should be adopted, decoupled from the Early Day Motion system and the government’s tight control over annulment debates should be lessened.
- Delegated Legislation Committees should be reformed along the lines of the European scrutiny committee system in the House of Lords.
Amending the Statutory Instruments Act 1946
Our research, as well as inquiries by the Secondary Legislation Scrutiny Committee, highlight the often poor quality of consultation processes and provision of explanatory materials. In The Devil is in the Detail we called on the government to review the Act with a view to replacing it with new legislation that takes account of modern forms of digital communication and sets out clear, minimum standards for publicity and consultation concerning delegated legislation in the future. Calls on the government to make improvements have hitherto fallen on deaf ears. Any revision of the Act should therefore address this broader canvass of concerns and not just focus on the narrower objectives enshrined in the Strathclyde Report.
House of Commons only procedures for financial measures
The Report recommends a further review – by the government in consultation with the Procedure Committees – to determine the principles that should underpin Commons only procedures for financial measures with a view to developing a protocol to apply to the drafting of all bills with delegated powers.
In terms of new SIs based on powers set out in existing legislation, it is unclear whether Lord Strathclyde expects the application of Commons only procedures to be applied retrospectively. However, the Commons Treasury Committee Chair, Andrew Tyrie MP, has already indicated that one option that might be needed would be ‘amendment of some or all parent Acts’.6 If so, this has significant implications that would need to be carefully addressed in detail.
Implicit in the Report is that there is broad agreement about the application of financial privilege in relation to Lords amendments and money bills and that this should be extended to delegated legislation. However, research by Professor Meg Russell of the Constitution Unit at UCL suggests that in fact there is a lack of transparency, information about decisions is scatted, and definitions are often unclear.7
Delegated powers in hundreds of Acts of Parliament have already been granted to Ministers on the assumption that any SIs would be subject to approval by both Houses and that Peers would have an opportunity to express a view, including the ‘nuclear’ option of rejecting an instrument. Had they known that they might not have that opportunity they might have taken a different view during the passage of the bill, for example by seeking to constrain a power in a different way.
In our view this issue would best be dealt with as part of an independent inquiry into the legislative process.
Option 1: remove the Lords from the process
Given the inadequate nature of Commons scrutiny, curtailing the role of the House of Lords (without any balancing reforms in the elected House) would risk turning an already deeply flawed process into a farce. Neutering the House of Lords in this way would merely empower the executive not the House of Commons. This option would also have significant implications for Lords consideration of primary legislation. Peers are likely to take a more robust stance with regard to the delegation of powers sought by ministers in each bill, requiring that more detail be put on the face of bills rather than in SIs and the scope of delegation being much more circumscribed than has hitherto been the case.
Option 2: codify the convention
This would retain the Lords role in respect of SIs but in effect settle and codify the disputed convention on the House of Lords approach to delegated legislation and the restrictions on its powers that should apply. However, the Joint Committee on Conventions in 2006 concluded that the nature of conventions makes them unenforceable and therefore codifying them would be ‘a contradiction in terms’.8 Nonetheless, some academics, for example Professor Meg Russell, have suggested that this option might offer a means to strike a productive deal – restraint by Peers in how they use their powers in relation to delegated legislation, in exchange for restraint by the government with regard to future appointments to the Upper House.9
Option 3: the preferred approach
This option is predicated on a shift towards a scrutiny process for SIs that is analogous to the primary bill process but without the provision for double insistence.
The Report repeatedly refers to a new process designed to provide the House of Commons with an opportunity to ‘think again’ in the event of disagreement, with the elected House thus being able to assert its primacy by overriding any Lords vote to reject an SI.
This implies that the House of Commons will already have considered the SI and will be given the opportunity to consider the matter a second time (indeed this is stated explicitly in Lord Strathclyde’s foreword to the Report).
However, our SI Tracker shows that 11 out of 96 affirmative SIs (11.4%) laid since the start of this Parliament or carried over from the last, were approved by the House of Lords before an approval motion was moved in the House of Commons. In these instances there would be no clear process for ‘thinking again’.
In relation to its proposals to suspend the operation of a negative SI after the Upper House has annulled it, the Report also indicates that the Order ‘in a great many of the cases is unlikely to be in force yet’. However, our SI Tracker data shows that of 588 negative SIs (excluding drafts) laid this Session, including carry-overs, 429 (73%) would come into force within 40 days of being laid and therefore before the scrutiny period has expired.
A key weakness of the recommendation is that it does not make clear how MPs will be invited to ‘think’ about and respond to SIs rejected by the Lords. If the House of Commons procedures do not properly provide for substantive (re)consideration of the Lords view on the SI then rather than underpinning the primacy of the Commons, the process will merely serve the interests of the executive, by granting an override power to MPs without requiring anything of them in terms of actively engaging with and making an informed decision about the concerns raised by Peers.
How then are MPs to be engaged with Peers’ concerns and what procedures will apply to enable them to reach a view?
The Report is silent on a number of vital procedural matters, foremost among them:
- How will the view of the House of Lords be conveyed effectively to the House of Commons?
- Will the resolution be preceded by a debate on the floor of the House of Commons?
- Will the matter be subject to a deferred division in the Commons as is the case for many SIs?
But until an answer is provided, Peers would be well advised to be wary about embracing this approach to reform.
Appendix: SI’s by the numbers
Despite the recent Tax Credits experience, successive governments have largely enjoyed a considerable degree of certainty in relation to the passage of SIs.
- Just 0.01% of all Statutory Instruments since 1965 have been rejected by either House.
- Since 1950, the government has been defeated on a fatal motion on just five occasions, on a non-fatal motion on 27 occasions, and then twice on the ‘delaying’ motion in respect of the proposed Tax Credit changes last October.
- Between 2004 and 2014, in only one session (2007-08) has the House of Lords considered motions against more than 1% of all negative instruments.
- So far, in this session alone, 32 SIs have been corrected by the government after they were laid before Parliament and 16 have been withdrawn because of defects or because it became clear the government could not win the vote.
- Since the start of this session, 77 out of 724 SIs (11%) are already subject to Commons only procedures.
- The number of both fatal and non-fatal motions is very modest when compared to the level of concern about different aspects of the system that are regularly ignored by successive governments.
In the eight sessions up to Autumn 2014 the House of Lords Secondary Legislation Scrutiny Committee drew the attention of the House to 741 SIs about which it had serious concerns, the majority of which (448 or 60%) were in relation to drafting.
The quality of consultation and Explanatory Memorandums (EMs) for SIs is highly variable. In 2013-14 alone the government had to replace 6% of all EMs.
- See our Despatch Box blog on the vote, ‘Licence to kill? Should the House of Lords kill the Tax Credits Statutory Instrument?’
- Strathclyde Review: Secondary legislation and the primacy of the House of Commons, Cm 9177, Dec 2015, p.3.
- R. Fox and J. Blackwell (2014), The Devil is in the Detail: Parliament and Delegated Legislation, (Hansard Society: London). This research was funded by the Nuffield Foundation. The findings are also distilled in a Delegated Legislation Frequently Asked Questions blog post.
- Strathclyde Review, p.6.
5.Sir David Renton (1975), The Preparation of Legislation, Cm.6053, (London: HMSO).
- Letter from Andrew Tyrie MP to Lord Strathclyde, 11 December 2015
- M. Russell & D. Gover (2014), Demystifying financial privilege: Does the Commons claim on financial primacy on Lords amendments need reform? (London: Constitution Unit, UCL).
- Joint Committee on Conventions, Conventions of the UK Parliament, Session 2005-06, HL Paper 265-1, HC 1212-1; Vol.1.
- The Strathclyde report: a threat or opportunity for the Lords?