Memorandum submitted by the Hansard Society
The case for post-legislative scrutiny of delegated
legislation
1. The Hansard Society has long advocated
for formal, systematic post-legislative scrutiny of statute law
in order to ensure that legislative provisions are clear and operating
as intended. Making the Law, the report of the Hansard
Society Commission on the Legislative Process, recommended in
1993 that "the operation of every major Act (other than Finance
Acts and some constitutional Acts), and all the delegated legislation
made under it, should be reviewed some two or three years after
it comes into force".[1]
2. The volume of delegated legislation has
increased significantly over the past few decades, largely (though
not solely) due to the increased scope of EU legislation and the
increasingly complex and technical nature of legislation, particularly
in the field of social welfare. In 1970, Statutory Instruments
(SIs) filled 4,880 pages of legislation; in 1990, 6,500 pages;
and by 2005 had reached 11,868 pages. Correspondingly the number
of SIs doubled from around 2,000 per year in the mid 1980s to
over 4,000 per year in 2005.[2]
This growth indicates the growing role and influence that delegated
legislation has come to play in the legislative process.
3. However, this growing role and influence
has not been matched by a concomitant increase in parliamentary
scrutiny. Reforms such as the establishment of the Lords Select
Committee on the Merits of Statutory Instruments have delivered
improvements in some areas, but overall the amount of parliamentary
scrutiny of delegated legislation has declined. In the 1996-97
session, for example, 46 hours were spent debating SIs in the
House of Commons, but that declined to just 18 hours in the 2006-07
session and the situation is mirrored in the House of Lords where
there has been a similar, though more gradual, decline in time
spent debating SIs (56 hours in 1996-97 compared to 44 hours in
2006-07).[3]
The pressures upon and rigidity of the parliamentary timetable,
and the inevitable time constraints that apply, suggest significant
improvements to the scrutiny of SIs at the time of creation may
be limited given the volume of delegated legislation currently
being created. This therefore militates in favour of rigorous
and robust post-legislative review of delegated legislation.
4. SIs are not amendable at creation stage.
However, they are easier to amend in light of practice and experience
than are Acts of Parliament and the ability to revisit individual
SIs in order to correct mistakes, clear up problems and clarify
areas of confusion is therefore of significant value.
5. Our recent research, especially Law
in the Making: Influence and Change in the Legislative Process,
has highlighted several factors and legislative developments
which further underline the need for systematic post-legislative
review of delegated legislation, namely:
— the challenges posed by "framework"
bills;
— the extent to which ministerial
commitments made in debate on parental primary legislation may
not actually be reflected in the final content of SIs.
"FRAMEWORK"
LEGISLATION
6. "Framework bills" (or "skeleton
bills" as the Delegated Powers and Regulatory Reform Committee
refers to them)[4]
set out the principles of the legislation for scrutiny but rarely
provide substantial information about how those principles will
apply in practical policy terms. The detailed provisions and powers
are to be supplied later in the form of delegated legislation
which is often not made available to MPs and Peers (even in draft
form) when they are scrutinising that parental legislation and,
if made available, is often provided at a very late stage in the
process.
7. Consequently, the Law Commission concluded
in its review of post-legislative scrutiny that for framework
legislation, "the only way to examine the outcome of the
primary legislation is by examination of the secondary legislation".[5]
8. Based on our own research, the Hansard
Society suggests that the Committee may wish to investigate the
post-legislative scrutiny of the 2002 Export Control Act as a
case study to see whether it offers a model of good or bad practice
with respect to the delegated legislation provisions. The Act
has been described as an "enabling" Act because all
the substance of export policy was contained in the delegated
legislation. This Act was one of five case studies examined in
detail by the Hansard Society for our 2008 Law in the Making report.
Beyond the sheer scope and importance of the delegated legislation
in relation to the parent Act and the issues about framework bills
that this Act raises, it is also potentially useful as a case
study because:
— the delegated legislation was only
made available to parliamentarians in draft form at a very late
stage (at the fourth sitting of the standing committee) leading
many MPs to criticise the process and conclude that effective
scrutiny by the committee had been compromised;
— there were subsequent public consultations
on the delegated legislation under the Bill; and
— the Government did commit to undertake
post-implementation review of the new controls three years after
their introduction. This post-legislative review process was launched
with a public consultation published by the Department for Business,
Enterprise and Regulatory Reform on 18 June 2007 to which the
Government issued three responses in 2008, since when a number
of changes to export controls have been implemented.[6]
MINISTERIAL COMMITMENTS
9. There is some concern that commitments
given to MPs and Peers about the content and practical application
of SIs during debates on the parental legislation may not always
be reflected in the final content of SIs.[7]
During the course of debates ministers often make valuable assurances
in Parliament concerning the meaning and implementation of the
legislation under scrutiny, often with commitments made as to
the contents of the delegated legislation that will follow. However,
our research found scepticism as to the extent to which these
assurances translate into action.[8]
10. For example, during parliamentary debate
on the Immigration, Asylum and Nationality Act 2006, ministers
said that the fines for employers of illegal immigrants would
be around £2,000; but in 2007, the government brought forward
delegated legislation to allow fines of up to £10,000.[9]
HOLISTIC POST-LEGISLATIVE
REVIEW OF
ALL LEGISLATION
OR DEDICATED
POST-LEGISLATIVE
REVIEW OF
DELEGATED LEGISLATION?
11. In March 2008, the government gave a
commitment to establish a systematic process of post-legislative
review, recommending a holistic approach where "review of
an Act should properly include the consideration of all or much
of the delegated legislation made under the Act".[10]
Whilst any post-legislative scrutiny is to be welcomed, there
are a number of shortcomings to this holistic approach which should
nonetheless be borne in mind.
— The post-legislative review of Acts
is intended to take place three to five years after Royal Assent.
However, SIs can still be made after that review has taken place,
and therefore will fall through the post-legislative scrutiny
net if no alternative mechanisms are in place.
— While it is impossible to assess
until the system has been embedded both in government and in Parliament,
it is not unreasonable to expect that the post-legislative scrutiny
of large or contentious Acts is likely to focus on the primary
legislation at the expense of the delegated legislation.
— There may be cases where the parent
Act is not deemed particularly contentious or flawed, but the
application and operation of one or two pieces of delegated legislation
that stemmed from it leads to concerns or unforeseen outcomes.
In such circumstances it may be deemed overly burdensome to necessarily
review the entire Act and all delegated legislation arising from
it simply to bring scrutiny to a very small proportion of it.
It would therefore be sensible to establish a mechanism by which
individual or a small numbers of SIs only need be subject to post-legislative
scrutiny if considered appropriate.
12. In its review of post-legislative scrutiny
the Law Commission found that consultees felt that secondary legislation
should not be treated differently from primary legislation in
terms of the need for review,[11]
and concluded that there is scope for the development of parliamentary
post-legislative scrutiny of secondary legislation in the form
of a new joint committee on post-legislative scrutiny.[12]
13. The Hansard Society endorses this view,
and believes there is a role for a dedicated post-implementation
review system for delegated legislation to be integrated with
holistic consideration of primary and delegated legislation.
14. An alternative model, which we have
recommended in the past and which might also fulfil this need
for dedicated post-legislative scrutiny, is that departmental
select committees commission research on the effect of particular
SIs or undertake a short inquiry.[13]
For this approach to be effective it would require select committees
to embrace a new strand of working and a greater commitment of
resources to allow them to carry out this function.
September 2009
1 Hansard Society (1993), Making the Law: The Report
of the Hansard Society Commission on the Legislative Process (London:
Hansard Society), para 393. Back
2
R. Cracknell (2008), Acts & Statutory Instruments: Volume
of UK legislation 1950 to 2007 (London: House of Commons Library). Back
3
Compiled from House of Commons and House of Lords sessional returns. Back
4
House of Lords Delegated Powers and Regulatory Reform Committee
(October 2007), Guidance for Departments on the role and requirements
of the Committee, p.3. Back
5
Law Commission (2006), Post-Legislative Scrutiny, Cm 6945, p.38. Back
6
For details of the post-legislative review of the Export Control
Act 2002 see: www.berr.gov.uk/consultations/page39910.html Back
7
A. Brazier, S. Kalitowski & G. Rosenblatt with M. Korris (2008),
Law in the Making: Influence and Change in the Legislative Process
(London: Hansard Society), p.196. Back
8
A. Brazier, S. Kalitowski & G. Rosenblatt with M. Korris (2008),
Law in the Making: Influence and Change in the Legislative Process
(London: Hansard Society), pp.187-188. Back
9
A. Brazier, S. Kalitowski & G. Rosenblatt with M. Korris (2008),
Law in the Making: Influence and Change in the Legislative Process
(London: Hansard Society), p.196. Back
10
Leader of the House of Commons (March 2008), Post-legislative
Scrutiny-The Government's Approach, Cm 7320, para 32. Back
11
Law Commission (2006), Post-Legislative Scrutiny, Cm 6945, para
4.2. Back
12
Law Commission (2006), Post-Legislative Scrutiny, Cm 6945, para
4.7. Back
13
See A. Brazier (2003), Issues in Law Making 3: Delegated Legislation
(London: Hansard Society); N. Gerrard & S. Hinton-Smith, "Regulation
and the Legislative Process: Improving Scrutiny and Accountability",
in A. Brazier (ed) (2004), Parliament, Politics and Law Making:
Issues & Developments in the Legislative Process (London:
Hansard Society), p.99. Back
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