In November 2021, two parliamentary committees declared that the use and overbreadth of delegated legislation had shifted power irreparably away from Parliament and that only a total “reset” would suffice. One of them, the Secondary Legislation Scrutiny Committee (SLSC), is a permanent committee based in the House of Lords which examines the policy effects of instruments subject to parliamentary proceedings.[i] The Secondary Legislation Scrutiny Committee’s scrutiny often relates to an instrument’s merits (content). By contrast, scrutiny on legal, technical or any non-merits related grounds is the role of the Joint Committee on Statutory Instruments (JCSI). [ii] This is the first of two blogs for the Constitution Society which will look at the work of the SLSC.
Merits but also process-related defects
The SLSC is known for reviewing “merits”. But its terms set out five (non-exhaustive) grounds on which it may bring an instrument to the House’s attention. Three are which are policy-related: the SLSC should notice if an instrument contains (a) politically or legally important policies or gives rise to a noteworthy policy issue; (b) has effects that may be inappropriate because of a change in circumstances; and (c) is imperfectly achieving policy goals.
However, two are process related: the Committee should notice whether an instrument has been made in an erroneous way, like (d) if the accompanying documents do not provide enough explanatory information or (e) if it appears to have been created following an inadequate consultation. These terms are concerned with procedural requirements before the instrument came into being (consultation) or while the instrument was made (accompanying explanatory documents). Unlike policy-related terms, these are unrelated to an instrument’s content. So despite being known for “policy” oriented scrutiny, the SLSC also reports on instruments created in a procedurally defective way.
When the SLSC notices an issue, it raises this to the House, in a “look at this” way. The SLSC cannot formally initiate the process for rejecting an instrument. By contrast, the Australian Senate Committee or New Zealand’s Regulations Review Committee play a formal role in the “disallowance” process. Unlike elsewhere, the SLSC can only give warning.
Figures in the 2021-2022 session
Across the last parliamentary session (May 2021 – April 2022) the SLSC published thirty-eight reports, all but two opining on specific instances of legislative practice. The Committee drew attention to 38 of 666 Statutory Instruments (Sis), nearly 6% of the instruments it reviewed. This proportion of instruments “of interest” is below previous figures. This is misleading, though, because it does not account for the Committee’s siloed-off work on all Coronavirus-related statutory instruments.
Most of the SIs reported on (74%, totalling 28) were flagged because of significant policy-related content. The remaining 10 SIs (26%) contained inadequate explanations, and two of these were also defective in achieving certain objectives. The proportion of SIs reported for inadequate explanations was a higher figure than during the previous session. These SIs came from different departments. The figures alone suggest a government tendency to create SIs without regard to best practice on documentary requirements. But beyond this, they provide no indication of wider issues.
Raising the alarm
So, when did the Committee last raise the alarm? Over both the current and last session, the SLSC pulled no punches when raising specific instruments to the House. (For example, the report on the on Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 received comment.) But, in addition to picking up problems with individual instruments, in 2021-2022, the SLSC published two more general reports, which should be taken as a “stark warning”.[iii]
Government by Diktat
Neary halfway through the session, the SLSC collaborated with the Delegated Powers Regulatory Reform Committee (DPRRC) and jointly published and Democracy Denied: The urgent need to rebalance power between Parliament and the Executive. In these joint reports, the SLSC and DPRRC claimed the accentuation of several longstanding trends during Brexit and the Coronavirus pandemic had fundamentally shifted the boundaries between delegated and primary legislation. Three of these trends relate to the proper remit of delegated legislation and two were “bad habits” relating to its creation. The DPRRC is primarily concerned with looking at whether bills contain inappropriate delegations of power. So together, both committees cover how much power is given away and how it is used.
The first trend is the overuse of so-called “skeleton bills”. These are bills that contain so many broad delegated powers that “real operation of the Act would be entirely by the regulations made under it”. Watching out for these bills is traditionally the DPRRC’s role, not the SLSC’s. Since skeleton bills allow a wider remit for regulations to determine new or significant policies, they enable delegated legislation to encroach upon the proper remit of primary legislation. The second jointly identified trend was legislative subdelegation: where delegated powers facilitate another level of legally binding rules (“tertiary legislation”). Third, the SLSC identified an increasing failure to use delegated legislation and guidance in an appropriate and consistent way. Guidance is a type of quasi-legislation: a category of statements or soft rules that are not “law” but, depending on their type and the context in which they created, may have varying degrees of legal effect.
Pointing to these trends, the SLSC and DPRRC argued that the expanding remit of delegated legislation causes a “democratic deficit” in terms of legitimacy and because its parliamentary scrutiny is “far less robust” than primary legislation. Rejection is rare and there is normally no amendment. Nor is there room for line by line scrutiny across a significant time period.
In a similar way using guidance to amplify the law or in a manner inconsistent with legal requirements is egregious from the perspective of legitimacy. Guidance does not need to be created following statutory authority, nor is it normally subject to parliamentary scrutiny or approval.[iv] During the pandemic, the SLSC (and JCSI) had highlighted the use of guidance to amplify or misrepresent the law. But this trend has since continued. For example, the Committee drew attention to the Wildlife and Countryside Act 1981 (Variation of Schedule 9, Part 1) (England) Order 2021 which makes it an offence to release common pheasants and red-legged partridges in protected areas without a licence. There was a mismatch between the law and guidance so that guidance portrayed the legal requirements as more relaxed than a prohibition.
As mentioned above, in Government by Diktat, the SLSC also identified two “bad habits”. First, that instruments were frequently not accompanied by enough impact information. In principle, details on the potential impact of instruments should be included because they clarify the potential effect of an instrument, how a policy decision was reached and the different options available. These assessments give parliamentary committees and stakeholders background into how a policy was conceived. These assessments ensure that a constructive dialogue can occur, and that the policy-making process is more transparent. Second, the SLSC flagged a government habit of introducing instruments in a time frame too short to allow effective parliamentary scrutiny. This practice was not limited to Coronavirus-related instruments (some of which were not even urgent), but also those implementing ordinary policy goals. Occasional missteps like these are not disastrous on their own, but they can snowball and inhibit effective scrutiny.
What Next? The Growing Imbalance
The Growing Imbalance between Parliament and the Executive was a wrap-up of the committee’s work in the 2021-2022 session. The report identified trends restricting parliamentary scrutiny. Again, its findings can be split into those which are about the role of delegated legislation and those concerning process alone.
Policy-related concerns tended to be about how delegated legislation was used. The Committee identified a growing tendency of SIs being used to “make permanent certain changes” under the pretext of the pandemic. For example, the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2022 (SI 2022/ 295) were used to permanently allow weddings and civil partnership ceremonies to take place outdoors. Another example is the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 3) Order 2021 (SI 2021/1464) which changes the definition of “permitted development rights”. According to the SLSC, the latter had a restrictive effect on residents ability to voice objections to certain time-limited developments through the local planning process. Although the second example is more significant in scale, in both, delegated legislation was used to make changes with a “significant impact on businesses and the public”, say the Committee.
Another use-related example concerns the blurring of lines between guidance and law. Although this trend manifests in different ways, one example is the use of guidance to fill in gaps in legislation. For example, the Draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 made it mandatory for anyone working inside a care home to be vaccinated. But despite their importance, key definitions – like what amounted to “satisfactory” evidence of being vaccinated – were undefined by the regulations or the explanatory memorandum. Instead, these were left to guidance.
Both examples relate to the proper use of delegated and quasi-legislation – and are concerning not just from the perspective of legitimacy, but because they risk obscuring the clarity of the law. For example, key definitions not appearing in the law makes it even more difficult for the layperson to understand.
Nevertheless, most of the SLSC’s complaints in Growing Imbalance are process-related. As before, the Committee pointed out instances where it did not seem as if the consultation process was adequate, and where the explanatory documents failed to explain whether consultations had any effect at all. A less significant problem, though still worth mentioning, was the number of errors in these SIs. There was no improvement in the proportion of instruments which needed correction: 9.6%, compared to 9.7% in 2019-2021 session.
The most serious process-related trends were longstanding and concerned a failure to provide instruments in a timely way alongside the absence of adequate explanatory documents. Over the 2021-2022 session, 54 out of 86 Coronavirus related instruments took effect over a period too short to allow for any debate or prior approval. 13 SIs came into force before being “laid” before Parliament and 22 SIs came into force within two days of being laid. A further 19 SIs took effect before being debated or approved. But this rushing through was not confined to Coronavirus-related instruments. For instance, the Universal Credit and Jobseekers’ Allowance (Work Search and Work Availability Requirements–limitations) (Amendment) Regulations 2022 (SI 2022/108) came into force the next day after being laid. Here, even the relevant minister was unable to explain why the regulations were treated as urgent.
Finally, the SLSC identified a couple of instances of simply missing documents: both administrative rules which should have been sent for scrutiny and accompanying documents to delegated legislation. For example, the Department of Digital, Culture, Media and Sport failed to send two Codes of Practice on data-sharing despite these codes being subject to the negative procedure. As for missing “accompanying” documents, the SLSC found “a significant number” of instruments were laid without impact assessments, and that some of SIs seemed to be prepared without an adequate analysis of potential impact. Since the complaints made in Government by Diktat, no progress was made. This has left the SLSC to reiterate the importance of making “clear and comprehensive explanatory material” available to Parliament and all other interested parties.
Conclusion: general trends
Overall, in 2021-2022, the Secondary Legislation Scrutiny Committee flagged trends related to how delegated legislation was used (policy) and how it was created (process). In Government by Diktat, the SLSC claimed, alongside the DPRRC, that delegated legislation has increasingly been used in an improper way. This trend is, in part, facilitated by the use of skeleton bills and the use of SIs to enact permanent changes to policy. But alongside delegated legislation being used in place of primary legislation to set policy, the SLSC also showed that guidance was wrongly used in place of delegated legislation.
The policy related concerns focus on the overbreadth of delegated legislation and pre-emptively flag occasions where guidance was being used in the wrong way. These examples show a need to use different types of legal and non-legal rules in a consistent way, that takes account of their legitimacy, context and the degree of scrutiny they receive.
Process related trends concerns included: instruments being brought into effect immediately without due cause, instruments not being presented at all, or being provided in an untimely way, consultation requirements being inadequate, and poor quality or missing documents. These practices have a cumulatively detrimental effect on the quality of parliamentary scrutiny and delegated legislation.
These issues orbit around the proper role of delegated legislation, its quality and oversight. But despite the importance of these warnings, nothing actively compels any government to follow the SLSC’s advice. Unlike abroad, there is no stick and so the Secondary Legislation Scrutiny Committee’s alarm can be heard, then treated with eventual indifference.
Part 2 considers the wider issues relating to these trends and recent developments.
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.
[i] The SLSC has also taken on a number of roles ad hoc, like (i) summarising the effects of all Coronavirus related instruments and (ii) in Brexit, reporting on any instruments made under s.23(1) of the EU(W)A 2018 and ss.11, 12 and 14 of the Retained EU law (Revocation and Reform Act) 2023.
[ii] This type of “technical scrutiny” of instruments features in the terms of the relevant committees in some Commonwealth parliaments including Canada, Australia and New Zeeland. But their work also covers compliance with constitutional requirements.
[iii] For general reports from the 2022-2023 session so far: an interim report on the committee’s work, comment on the Retained EU Law (Revocation and Reform) Bill and finally, comment on process related deficiencies (why the government’s impact assessment system is failing).
[iv] When non-legislative instruments (soft rules) are subject to parliamentary procedures, they are reviewed by the SLSC (e.g., changes to the Highway Code and the Immigration Rules)