Introduction
In Part 1 of this piece I summarised the role of Secondary Legislation Scrutiny Committee (SLSC) and some trends that it had flagged during the last parliamentary session. Broadly speaking, these included: (1) a tendency to use delegated and quasi-legislation inappropriately, and (2) an increasing non-compliance with process-related requirements. These trends manifested in different ways. Trend one in: (a) the use of delegated legislation to make permanent policy changes, (b) the use of quasi-legislation (like guidance) to lay down legal requirements or as an inappropriate supplement, and (c) a mismatch in the content of law and guidance. The second trend appeared through: (a) a failure to provide instruments and accompanying documents in a timely way, (b) instruments being brought into effect on an urgent basis (despite the lack of objective urgency), and (c) inadequate consultation and poor-quality explanations or impact assessments. Part 2 (below) argues that these trends have continued largely because of flaws in the structure of the UK’s delegated legislation system.
Improvements in 2022-2023? Non, rien de rien!
Although the current parliamentary session has not ended, two SLSC reports seem to indicate that concerning trends have continued: its twelfth report, ‘Losing Impact’, and, more recently, its regular interim report.
Published in October 2022, ‘Losing Impact’ explains the process and standards for Impacts Assessments (IAs) in addition to how recent trends have undermined the quality of scrutiny and led to a lack of transparency and accountability. These trends include an increasing number of instruments being laid without the requisite impact assessments, departments not factoring in enough time for scrutiny of these assessments, Explanatory Memorandums often missing impact information beyond financial effects and scarce post-legislative review of such instruments. So since the alarm-raising report ‘Government by Diktat’ (covered in part 1) there seems to have been no improvement in conforming to process-related requirements.
Published this May, the SLSC’s interim report reflects upon its work from May 2022 to 2023, covering some 700 SIs of a particularly “erratic” nature. Again, some of the same complaints which appeared in the Committee’s previous reports resurfaced: the overuse of urgent procedures in ordinary circumstances, legislation being enacted reactively, inadequate consultation, and increasingly providing inadequate explanatory documents. Most of these concerns were raised in ‘Government by Diktat’, but there does not appear to have been any significant improvement.
To show this, two examples suffice. The first of these is legislation that is brought in improperly on an urgent basis. Out of the 424 instruments reviewed by the SLSC between May 2022 and May 2023, 43 (around 10%) came fully into effect within 48 hours of being laid. These included both negative and affirmative instruments. Negative instruments do not require parliamentary soft approval, but may be vetoed by a resolution of either House within 40 days. Convention dictates that negative instruments should not be brought into effect until 21 days after they are laid, to ensure that they are scrutinised in committee first. Despite the SLSC’s warning last year that “parliamentary scrutiny should not be curtailed save in exceptional circumstances”, the trend appears to have continued. In its interim report, the SLSC noted that urgent procedures are “still being used more extensively than current circumstances seem to justify.”
The second example concerns supplementary documents: the SLSC observed a “most unwelcome” increase in the proportion of instruments that were reported on the grounds of inadequate explanation between 2022-2023. The Committee also took note of a few instances where departments had failed to provide accurate information in the Explanatory Memorandums. These errors are especially concerning because the SLSC had very recently published a special report (‘Losing Impact’) on the importance of explanatory documents. These failings “bring into question the effectiveness of the existing system” for producing and checking such documents. Again, we see that the requisite process – which is supposed to ensure adequate time and resources for effective parliamentary scrutiny – has not been adhered to.
Broader Structural Issues
But why is there so little improvement, despite clear warnings in reports with fiery titles? The answer is in part due to structural features within the UK’s delegated legislation.
Earlier, I grouped the trends mentioned by the Committee as concerned with (1) the appropriate use of delegated legislation or (2) compliance with “good practice” (process-related requirements). In the UK, frequent concerns relating to the first could be because there are no provisions in primary legislation or in a constitutional document that serve to restrict the delegation of legislative powers or their exercise.[1] Although the effectiveness of non-delegation doctrines is debatable, at least some countries have clear constitutional limits on how delegated legislation should be used. By contrast, in the UK, there are broad contours of what can be considered inappropriate – e.g., implementing new or significant policies – but these are not set in stone. And any strict limits could be difficult to impose, let alone police, because parliamentary sovereignty dictates that there should be no constraints on Parliament’s law-making abilities (which includes giving away powers as it sees fit).
While scrutinising the over-delegation of power in bills is the job of the Delegated Powers and Regulatory Reform Committee, it can only warn against skeleton bills, not prevent them. Similarly, the SLSC can flag an instrument to Parliament, but the process for initiating and rallying support to reject an instrument is the job of parliamentarians, and rejection is rare. Ultimately, a lack of boundaries or well-established modern convention on the use of such delegation has allowed the threshold between primary and delegated legislation to shift upwards in a concerning way.
The second group of concerns – compliance with process-related requirements – lead to Parliament lacking the time and resources to adequately scrutinise delegated legislation. Again, the root of the problem is perhaps the lack of sanctions that ensure that good practice is upheld. When a negative instrument is laid the day before it takes effect – and it implements a non-urgent measure – the SLSC may only issue a strongly worded report or letter. It is the same for when impact assessments or explanatory memoranda are not of an adequate standard or do not contain the right information. Too much rests on administrative and political actors doing things by the book of their own volition. In theory all departments agree about conventions on scrutiny and the importance of adequate documents, but, if there is no clear process for accountability, standards slip, and conventions are bent. The analogy of a speeding limits is helpful: everyone agrees they should exist, but if they were not policed, would they be adhered to?
New Developments
The structural flaws within the UK’s system for scrutinising delegated legislation were acknowledged by the Donoughmore Committee of 1932, and more have been well-documented in the modern literature. Chief amongst these flaws is a lack of meaningful opportunity for parliamentary scrutiny: debate is rare, amendment normally non-existent, and parliamentarians are left with nuclear options (either rejecting or accepting the whole instrument, even if only part of it is flawed).
Despite long-standing problems in the system for scrutiny, there is a chance of change. Around the same time that Government by Diktat was published, in November 2021, the Hansard Society established a “Review” to lay out a “comprehensive plan” of “fundamental and far-reaching reform” of the delegated legislation system. Hansard’s working paper was published in February: it contained thirteen draft proposals to the current system, including a concordat allowing the Government and Parliament to set clear principles on the use and boundaries of delegated legislation, and the establishment of a new Parliamentary Office to ensure that members of both houses have the necessary resources to assess instruments. While these proposals merit comment on their own, what is certain is that Hansard’s final report is hotly anticipated. But as usual, so much of this depends on whether there is appetite for reform (and enough political support). This issue is perhaps the trickiest of all: because imposing constraints on the executive is not an idea received kindly by its members, or those aspiring to become them. In other words, whether change materialises depends on a majority of parliamentarians being willing to push for more control of the legislative process – against executive will – regardless of the potential political cost of such a move.
Tasneem Ghazi.
Tasneem is a first year PhD student at the UCL Faculty of Laws. Tasneem previously completed the Barrister Training Course while working part-time as a research assistant at the Constitution Unit. In 2021, she interned at the Institute for Government and at the UK in a Changing Europe. Tasneem holds an MA in History from King’s College London, and an LLB in Politics, Philosophy and Law.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] Stanley de Smith, ‘Delegated Legislation in England’ The Western Political Quarterly, Vol. 2, No. 4 (Dec.1949), at p.514, “no constitutional impediment to the delegation of legislative powers”.