Most of the UK’s general public law is made not through Acts of Parliament but through delegated (or secondary) legislation, generally in the form of Statutory Instruments (SIs). Delegated legislation is crucial to the effective operation of government, but despite the volume and importance of such legislation, remarkably little public and media attention is normally paid to it.

This report opens up the delegated legislation process. It explores how, and by whom, decisions are made about what goes into primary legislation and what into secondary legislation. It looks at the evolution of delegated legislation, and sets out in detail how the delegated legislation process works in both Houses of Parliament. It also examines a number of legislative case studies that illustrate different aspects of the flaws in the current system:

• the Banking Act 2009;

• the Policing and Crime Act 2009;

• the Public Bodies Act 2011;

• the Localism Act 2011;

• the Welfare Reform Act 2013; and

• the draft Deregulation Bill 2013

It concludes that the present system for the scrutiny of delegated legislation at Westminster is broken, especially in the House of Commons, and it set out a range of recommendations for comprehensive reform.

It is impossible to separate consideration of delegated legislation from that of primary legislation. The issues with delegated legislation are now so serious that an independent expert inquiry is needed along the lines of that undertaken in 1975 by David Renton on the ‘Preparation of Legislation’ or our own Commission on ‘Making the Law’ chaired by Lord Rippon in 1993. 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 process;

• rationalisation of scrutiny procedures - exploring what criteria and principles define what Members want to look at again in the area of delegated legislation and how this can best be achieved;

• 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; and

• whether the scrutiny system should be re-designed such that the greater burden of work falls on the House of Lords in future.

If such an inquiry is not held, then there are a number of areas where reforms could be implemented to ameliorate the problems with delegated legislation. These are key areas for consideration, not a blueprint.

It is incumbent upon departments to better plan and co-ordinate the production of SIs. A central co-ordinating unit to plan and promote awareness of the production and implementation of upcoming SIs across government should therefore be established.

A new, clearer annulment motion should be adopted; praying against a negative instrument in the House of Commons should be decoupled from the Early Day Motion system.

Government control over annulment debates should be lessened. Annulment motions laid by the opposition should have an improved chance of debate; time could be set aside each session for their consideration. Backbenchers should be able to seek a debate on an annulment motion if they can demonstrate some level of support for it; here, the decision-making power about whether time should be allocated for such a debate on the Floor of the House could be accorded, for example, to the Backbench Business Committee or even to the Speaker. A select committee should also be able to request a debate if it is concerned about an instrument and believes it warrants consideration by the House.

Delegated Legislation Committees should be reformed along the lines of the European scrutiny committee system in the House of Lords. A committee should be appointed, supported by a number of sub-committees allocated to deal with particular policy areas. Some of the members should be drawn from the relevant departmental select committees. A committee secretariat would support Members, providing briefing material and advice to the participants.

A new conditional amendment provision should be introduced to enable Members who have concerns to indicate what changes are required to bring an SI within the bounds of acceptability.

The House of Lords should make greater, albeit judicious, use of its power of veto in the future, particularly in respect of any SIs emerging from framework legislation that cannot be effectively scrutinised at the primary bill stage. This would be in keeping with the House of Lords’ revising function and its power of delay.

The strengthened scrutiny models should be rationalised. One variant might have provision for drafts, consultation, supporting documents, committee determination of the scrutiny procedure, and consideration for up to 60 days (perhaps formalised as the ‘enhanced affirmative’ procedure); the other might have all these and additionally a veto power for judicious application in the most contentious cases only (to be known as the ‘super-affirmative’ procedure). Both variants should statutorily require that the minister consider committee recommendations and explain in writing to the relevant committee if the government does not plan to adhere to those recommendations.

The remit of the Delegated Powers and Regulatory Reform Committee should be changed so that it can report on bills immediately, when they begin their passage through one of the Houses, whether that be Lords or Commons. This would push at the commonly understood boundaries of bi-cameral scrutiny and require an increase in committee resources, but it would ensure that the House of Commons is better advised on the nature of delegated powers in bills than is the case at present.

The DPRRC should also consider how it might establish a more systematic process for checking past delegations of power and an accountable framework against which to test the decisions that it makes and to which government departments should then have regard when drafting powers and procedures.

A Legislative Standards Committee should be established, ideally on a bi-cameral basis, to assess bills against a set of minimum technical preparation standards that must be met before a bill is introduced. The DPRRC should confirm whether or not it is content with the quality of the Delegated Powers Memorandum and its response should be incorporated into the Committee’s review of each bill. If such a Committee is not established, the DPRRC should be vested with the authority to reject a memorandum that it believes is inadequate resulting, if necessary, in a delay to consideration of the relevant parts of the bill until such time as an improved memorandum is provided to the Committee. The DPRRC should call both ministers and Permanent Secretaries to account at oral evidence hearings in the future when the quality of any memorandum falls well below what Members expect.

The House of Commons should observe the ‘scrutiny reserve’ that exists in the House of Lords in relation to decisions of the Joint Committee on Statutory Instruments (JCSI). The House should not debate an SI before the Committee has concluded its deliberations on an instrument.

In the event of an egregious breach of the 21-day convention or six-week recommendation, MPs on the JCSI or who otherwise have an interest in the issue should seek a backbench business debate. Alternatively, the JCSI and Secondary Legislation Scrutiny Committee (SLSC) plus any relevant departmental select committees should consider holding an extraordinary joint meeting at which they invite the responsible minister to appear and account for what has happened.

The government should be formally required to respond to all reports from the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee.

The government should be required to remedy defective SIs within four weeks. A convention should be agreed whereby defects and any transitional consequences must be addressed within this period unless there are exceptional reasons not to, circumstances that must then be justified to the JCSI.

The government should also be required to publish departmental statistics accounting for the number of SIs that are revoked each session, and the number of corrective instruments that are produced, and to do so in a uniform way for the purpose of analysis and comparison.

Parliament should undertake a review of the language and terminology used in the delegated legislation process, as well as the presentation of information about it on the parliamentary website in order to improve curation of material with a view to making the process more accessible and understandable.

The Government should review the Statutory Instruments Act 1946 with a view to replacing it with new legislation that takes account of modern forms of digital communication and developments arising from the ‘Transforming Legislation Publishing’ and ‘Good Law’ initiatives. Importantly, it should also set out clear, minimum standards (of a high level) for publicity and consultation concerning delegated legislation in the future.

Fox, R. & Blackwell, J. (2014) The Devil is in the Detail: Parliament and Delegated Legislation (London: Hansard Society)