Select Committee on Delegated Powers and Deregulation Thirty-Seventh Report


SPECIAL REPORT


29 NOVEMBER 2000



By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.

ORDERED TO REPORT

SPECIAL REPORT FOR 1999-2000 - THE COMMITTEE'S WORK

PART 1: INTRODUCTION

1. For many years delegated legislation has been the Cinderella of parliamentary scrutiny. Parliament has simply failed to keep up with the huge increase in the volume and extent of statutory instruments. The number of instruments subject to any kind of parliamentary procedure grew by around 50 per cent in the 15 years to 1996, from under 1,000 a year to around 1,500 a year. In the same period the number of negative instruments almost doubled, from around 700 in the early 1980s to over 1,300 in 1994-95. Since then the overall number of instruments laid before Parliament has remained about 1,500 a year.[1] But whilst delegated legislation has increased both in volume and in importance, and as the subjects it covers have become ever more complex,[2] the amount of time the House of Lords has spent discussing it has diminished. Four sessions ago, in 1995-96, 4.3% of the time of the House of Lords was spent debating affirmative instruments. Three sessions ago the percentage had slipped to 3.7%, and for the past two sessions the percentage has been 2.9 %. For debates on other statutory instruments the picture is similar.

2. This session, however, there have been several indications that the problem of the parliamentary deficit in the scrutiny of delegated legislation is at last being recognised. At the beginning of the session, in December, the House debated an unstarred question in the name of Lord Dean of Harptree[3] asking the Government whether they would support changes in procedure to improve parliamentary scrutiny of delegated legislation.[4] In January the Royal Commission on House of Lords Reform devoted a whole chapter to the scrutiny of statutory instruments.[5] On 22 February the House of Lords voted, by a substantial majority, to reject an affirmative order,[6] thereby exercising a right which it had not exercised since 1968, and this too has brought renewed interest in the scrutiny of secondary legislation. And in March this year, as earlier in 1996, the Procedure Committee of the House of Commons drew attention to the inadequacy of the scrutiny arrangements for secondary legislation in the Commons, and also made recommendations for change.[7]

3. The Leader of the House recently suggested that delegated legislation might be further discussed in the context of House of Lords reform:

    "The issues of secondary legislation and how it should be scrutinised were addressed in proposals in the report on the reform of the House of Lords by the Royal Commission chaired by the noble Lord, Lord Wakeham. They would probably be appropriate matters for consideration by the Joint Committee of both Houses when it is set up after the Recess to examine the parliamentary aspects of reform."[8]

4. In the mean time, the deficit in parliamentary scrutiny of secondary legislation makes it all the more important that there is adequate scrutiny of the ambit of the powers granted by primary legislation and control over their exercise. This is what the Delegated Powers and Deregulation Committee seeks to do for the House of Lords.

5. This report outlines the work and working methods of the Delegated Powers and Deregulation Committee during the 1999-2000 session. Once again it has been a particularly busy session, and there have been a number of new developments in the Committee's work. In this report we seek to highlight the main issues which have arisen. We also make a number of recommendations for the Committee's work in the future.

6. The Delegated Powers Scrutiny Committee was established as a limited experiment in the first instance in session 1992-93, following pressure in the House for more thorough examination of the powers which were being delegated by primary legislation. The Committee became established as a sessional committee from the beginning of session 1994-95. In May 1994[9] the Committee was given the additional role of scrutinising proposals under the Deregulation and Contracting Out Act 1994. The Committee's terms of reference are set out at the beginning of this report, as they are in all our reports. It is not our task to comment on the merits of bills. Our remit is confined to the powers delegated by bills. Our role in relation to deregulation proposals is not so circumscribed, and we find ourselves concerned with the merits of a proposal as we consider (as the 1994 Act requires) whether it preserves necessary protection.

THE HOUSE OF COMMONS DEREGULATION COMMITTEE

7. The House of Commons has no Committee dealing with delegated powers, but the House of Commons Deregulation Committee has similar functions with regard to deregulation proposals. Although the Government has only laid one such deregulation proposal this year, we have continued to co-operate closely with the Commons Committee, while operating entirely independently of it. In particular, there is a complete exchange of papers between the two Committees, including the exchange of evidence from witnesses, thereby avoiding unnecessary duplication of effort for all concerned both outside and within Parliament. We find this close co-operation between the Committees of the two Houses invaluable.

RELATIONS WITH OTHER PARLIAMENTARY COMMITTEES AND ORGANISATIONS

8. The Delegated Powers and Deregulation Committee was originally modelled, with modifications, on the Australian Senate's Scrutiny of Bills Committee, and we have always sought to keep in touch with our Australian roots, and indeed, via the Internet,[10] with the work of other Parliaments. On 13 December 1999 the Committee met a delegation from the Regulation Review Committee of the Parliament of New South Wales.[11] In discussion, the following issues were amongst those raised:

  • regulatory impact statements;
  • the importance of consultation and cost-benefit analyses;
  • the effectiveness of Sunset Clauses in culling regulations in New South Wales.

9. On 24 May 2000 we welcomed Professor Jim Davis, Legal Adviser to the Australian Senate's Scrutiny of Bills Committee. Professor Davis outlined the similarities and differences between the two Committees, including the following points:

  • in common with the Delegated Powers and Deregulation Committee, there was a high degree of consensus on the Committee, which had never divided on party lines;
  • the Committee's reports were always agreed unanimously, again like this Committee;
  • the Committee had six members, three Government, two major Opposition and one minor Opposition;
  • the powers of the executive were much more limited in Australia. Although the Australian Parliament had passed the Interception Act 1979 before the Senate's Scrutiny of Bills Committee was established, the powers in that Act were much more limited than those in the Regulation of Investigatory Powers Bill which was currently before the Westminster Parliament, and they could only be extended by primary legislation.

We also noted that the Australian Senate rarely sits beyond 7 pm, and refuses to consider Bills for which inadequate scrutiny time has been provided.

10. On 7 November 2000 we welcomed the Hon. Doug Kidd, a former Speaker of the New Zealand Parliament and the current Chairperson of the New Zealand Parliament's Regulations Review Committee. Mr Kidd noted the following similarities between the two Committees:

  • there is a very high success rate for their recommendations;
  • both Committees have to work hard and fast;
  • the Committees' recommendations are confined to achieving specific objectives within the terms of reference;
  • there has never been a vote in either Committee.

11. The Chairman and Clerk were invited to give evidence on 23 November 1999 to the House of Commons Procedure Committee for its enquiry into delegated legislation.[12]

12. The Chairman talked about the Committee in a Constitution Unit Lecture on 28 June.[13]

13. The Clerk also talked about the Committee in the Statute Law Society's Annual Lecture on 16 May,[14] and attended the 5th Commonwealth Conference on Delegated Legislation in Harare in October.

THE PURPOSE OF THIS SPECIAL REPORT

14. Although other House of Lords Committees do not do so,[15] it has been our practice at the end of each session to produce a report evaluating our work during the session. We send these reports to representatives of the front benches and to the Chairman of the Procedure Committee and of the Liaison Committee. In our last such special report we made a number of recommendations, not all of which have been taken up by the appropriate House Committee. Some of the recommendations in the present report - summarised in the executive summary - are made to Government Departments, some to the Procedure Committee and some to the House as a whole. We look forward to their further discussion.


1   There appears to have been a small decline in the number of statutory instruments laid before the Westminster Parliament this session. It is too early to judge whether this will be a continuing trend as a consequence of power devolved to the Scottish Parliament. Back

2   For example, this session some 9 per cent of all instruments were made under the European Communities Act 1972. This is not a complete count of instruments implementing Directives as it is frequently possible to use existing delegated powers for this purpose. Back

3   A former member of this Committee. Back

4   House of Lords Hansard, 7 December 1999, cols. 1243-1270. Back

5   Cm 4534, Royal Commission on the Reform of the House of Lords, A House for the Future (January 2000), especially chapter 7. Back

6   On 22 February 2000 the House of Lords declined to approve the draft Greater London Authority (Election Expenses) Order 2000 by 215 votes to 150. On the same day, the motion for the annulment of the Greater London Authority Elections Rules 2000 was carried by 206 votes to 143. Back

7   House of Commons Procedure Committee, 4th report (1995-96), Delegated Legislation (HC 152); 1st report (1999-2000), Delegated Legislation (HC 48). Back

8   House of Lords Hansard, 27 July 2000, col. 579. Back

9   The 2nd report of the Procedure Committee for 1993-94 (HL Paper 58), which recommended that we should undertake this work, was ordered to be printed on 23 May 1994 and approved by the House on 20 October 1994. Back

10   The Committee has power to travel only within the United Kingdom. Back

11   The Chairman met a further delegation from the same Committee informally at the House of Lords in July 2000. Back

12   This was printed as HC 48-i. Back

13   "Wakeham in the Long Grass: Can the Lords guard democracy?" This lecture was subsequently published by the Constitution Unit. Back

14   "Secondary legislation: second class or crucial?" This lecture will shortly be published in Statute Law Review, 2000, vol. 21, no 3, pp 149-162. Back

15   Details of the staffing and work of each select committee in the House of Commons are published each year in the Sessional Return (for Session 1998-1999, the House of Commons Paper number is HC (1999-2000) 1). For the past two sessions the Joint Committee on Statutory Instruments has published a Special Report comprising action taken by Departments in respect of instruments reported by that Committee. The Joint Committee's first special report for 1999-2000, ordered to be printed on 18 July 2000, sets out these Departmental returns for 1999 (HC Paper 819; HL Paper 103). Back


 
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