---

Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, it is a pleasureto follow the noble Lord, Lord Filkin, and to congratulate him and other members of the Merits Committee on producing what in my view is an excellent report, and one that I believe may come to be recognised as a seminal document. I shall be reinforcing some of the points that the noble Lord has made in opening. It has long been recognised that there are problems with our legislative process and with parliamentary scrutiny of legislation. The problems have been quantitative as well as qualitative. As the noble Lord said, there has been a growth decade by decade in the volume of legislation. Bills are getting longer. More and more statutory instruments are being promulgated. Many provisions are complex and not easy for Members of either House, let alone the public, to understand. We know from experience that they do not always work in the way they are intended to work. Unfortunately, we usually know that only when they have gone badly wrong. We lack any systematic means of post-legislative scrutiny. There have been some improvements in recent years. With primary legislation, there has been the very welcome growth of pre-legislative scrutiny. At the beginning of this month the other place resolved that Bills should normally be referred to evidence-taking public Bill committees, in my view a major advance and possibly the most important reform of the legislative process in recent history. The Law Commission has made recommendations for post-legislative scrutiny. In respect of delegated legislation, the most important changes have taken place in your Lordships' House. We have the Delegated Powers and Regulatory Reform Committee and now the Merits Committee. Both are doing a superb job. This report alone demonstrates the worth of the Merits Committee. The committee is part of the answer to the problem of delegated legislation and, in this report, it has succinctly and effectively identified what the problem is. There is, as it shows, a systemic failure in government in promulgating delegated legislation. With primary legislation, there is at least some central co-ordination. Bills have to be agreed by the Cabinet and the Ministerial Committee on Legislative Programme. There is a means of ensuring that measures are appropriate and fit in with the time available in the Session. With delegated legislation, there is no central co-ordination and responsibility is dispersed to departments. As the report shows, departments deal with such legislation in different ways. As a result, delegated legislation is generated in what is essentially a disparate and discrete manner. There is no co-ordinated mechanism for ensuring that each statutory instrument achieves its goals efficiently, that it is necessary and that it is clear to those at whom it is addressed. The absence ofsuch a mechanism also makes difficult effective parliamentary scrutiny. Consultation and parliamentary scrutiny are means to an end; namely, ensuring that delegated legislation is fit for purpose. There is thus something of a vicious cycle. Because there is no central co-ordination, delegated legislation may be brought forward late and there can be bunching at a particular time of the year. That limits the capacity of the two Houses to consider the legislation. The problem is compounded by limitations of time in the other place, thus putting a particular onus on this House to ensure that delegated legislation is fit for purpose. To ensure that delegated legislation is fit for purpose, there needs to be action not just by Government but also by the House. The action to be taken by Government is very clearly laid out in the report. I endorse all the recommendations that are made. The Government's response to the recommendations is, I fear, disappointing. Here I echo what was said by the noble Lord, Lord Filkin. The Government recognise the importance of what the committee is arguing but primarily commit themselves to beefing up the guidance and extending some of the existing practices. In so far as there is an improvement in the existing guidance and in practices, I welcome the changes. But they do not go far enough to deal with the problems identified by the committee. The Government's response does not really engage as much as it should and could with the recommendations. It is a missed opportunity. It really should do more to ensure that there is co-ordination. I believe that the same principle that applies to primary legislation should apply to secondary legislation. I disagree with the Government on the point that they make in their response. In terms of laying orders at least 21 days before they are to come into force, it is not enough simply to remind departments that the 21-day period is a minimum period. There needs to be some mechanism for ensuring compliance. Simply reminding departments is not going to change the culture within departments. The Government's response appears to be driven from the bottom up, from departments, rather than from the top down, from the Cabinet. The point that I would stress to the Minister is that it is in the Government’s interest to implement these recommendations. The Government want legislation that achieves its intended goals. They are also committed to ensuring better regulation. I draw attention especially to the opening sentence of paragraph 80 of the report, where it notes that central co-ordination will not be effective, "““unless there is a recognition on the part of the Government machine that efficient planning and management of secondary legislation is as much a part of good regulation as are regulatory impact assessments and consultation””." As it goes on to note, the Better Regulation Executive cannot distance itself from the matter as being of no more than procedural interest to HMSO. This has to be seen as part of the process of better regulation and not as somehow detached from it. I am not sure that in their response the Government have fully grasped that point. I very much endorse the recommendations on simplicity and consultation in addition to the core recommendations covering co-ordination andpost-implementation review. The committee's recommendation on post-implementation review mirrors the recommendation of the Constitution Committee in its 2004 report on the legislative process. The Constitution Committee, which I chaired, argued the case for post-legislative scrutiny to be undertaken by departments and for Parliament itself to have some mechanism for reviewing whether Acts have fulfilled their purpose. The Law Commission has recommended the creation of a Joint Committee to undertake post-legislative scrutiny. It sees the committee as evolving and it could be that it—or the Merits Committee—could come to engage in oversight of post-implementation review of delegated legislation. I wish to raise one particular point in respectof government. The Merits Committee wants to encourage officials responsible for producing delegated legislation to see the process from the perspective of Parliament. That will enable them to appreciate the need for laying instruments in a timely manner and to avoid congestion. That touches on a wider problem; namely, the fact that officials often have a limited grasp of Parliament in terms of both its significance and its procedures. That can result in the sort of problem identified in this report, but it results also in problems encountered by other committees. Though senior civil servants often understand the role of Parliament, less senior officials sometimes do not and it is the less senior officials who are frequently responsible for producing statutory instruments as well as other material laid before Parliament. It would therefore be helpful to hear from the Minister what the Government are doing to address this problem. Is there a role for the National School of Government, not least in ensuring that officials responsible for delegated legislation are schooled in understanding Parliament and its procedures? I turn to the role of Parliament. As the report shows, one of the explanations of why delegated legislation is not given the attention it deserves within government is the fact that there is no strong incentive to do so. Delegated legislation is not subject to the same scrutiny by Government or by Parliament as primary legislation is. Instruments subject to the negative resolution procedure are usually not debated in the Commons; time cannot be found even if they are prayed against. In this House, even if debated, they are not usually subject to a vote. Instruments subject to affirmative resolution are debated, but usually briefly and again without a vote. There is no scope for amendment and, as there is usually no Division, few members take an interest. Delegated legislation is very much the poor relation in the legislative process. If officials responsible for delegated legislation are to take Parliament seriously, Parliament has to take seriously delegated legislation. We have the Merits Committee, but by itself it cannot ensure that officials take Parliament seriously. We have to be prepared to act on reports from the committee and if a statutory instrument is not fit for purpose to reject it. We will in due course debate the report of the Joint Committee on Conventions. It recognises that there is no convention that prevents the House from rejecting a statutory instrument. As the noble Lord said, it may be exceptional for it to do so, but its ability to do so—as the Merits Committee noted in its evidence to the Joint Committee—gives the House some leverage in ensuring that instruments are fit for purpose. As I argued in my evidence to the Joint Committee, I see no reason why we should not reject statutory instruments. They do not usually deal with great issues of principle and they can be relaid. I do not go along with the recommendations of the Wakeham commission. I think that existing powers to reject an SI should remain, but we should be prepared to use those powers. As the noble Lord said, rejecting an SI that is not fit for purpose will concentrate the minds of Ministers and, especially, officials. I am not arguing that we should regularly reject SIs. Once there is a clear awareness on the part of departments that poorly drafted and inadequate statutory instruments—those that do not meet the criteria specified by the Merits Committee—will not be approved by the House, I have no doubt that SIs will be better drafted and that they will be more likely, in the words of the Merits Committee at the end of paragraph 119, to be, "““well thought-through and free from defect””." The publication of the report of the Joint Committee on Conventions prior to this debate is timely. If we put the two reports together, we have the basis for ensuring that we use our power to support the work of the Merits Committee and that delegated legislation is fit for purpose. I reiterate that this is an excellent report. It is essential that we see thisdebate not as an end point but as the beginningof the process in ensuring that the report’s recommendations—all its recommendations—are implemented.