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Merits of Statutory Instruments Committee: Secondary Legislation

My Lords, I welcome this debate on the report the Merits Committee on the management of secondary legislation, produced under the guidance of our chairman, the noble Lord, Lord Filkin. I came on to the committee at its inception in 2003, not knowing precisely what I had let myself in for. It was extremely interesting to be there from the start, as we had to decide how we were to operate and report to the House. We were lucky to have such an excellent first chairman in the noble Lord, Lord Hunt of Kings Heath, backed up by our first clerk, Christine Salmon, and our excellent secretariat, who were especially recruited for us from the Civil Service—truly a case of poacher turned gamekeeper. I say to the noble Lord, Lord Norton, that one task that has been carried out is educating members of the various departments concerned with making statutory instruments on how we wish to have things presented to us and how to improve the general quality. Forums have been run to enable departments to achieve this. During my three years on the committee, I was amazed at the broad range of subjects covered by statutory instruments, ranging from a single sheet of A4 paper from the Electoral Commission, stating that no party shall call itself ““None of the Above””, to hundreds of pages reorganising the medical or dental professions. There was even one on the preservation of Antarctic monuments such as Scott’s hut. On a more serious note, it is noticeable thatthe quality of SIs, particularly the Explanatory Memorandum, has improved dramatically, and our insistence on full details of the consultation carried out by the relevant department is starting to achieve our objectives. However, as has been said, there are still too many occasions when the required 12-week period for consultation is not achieved. It is a pity that the Explanatory Memorandum is not—on grounds of cost—a part of the official statutory instrument document and is available only on the departmental website. The Explanatory Note, which is part of the document, is totally useless. Many of the SIs that we see are completely incomprehensible, consisting solely of amending references to the primary legislation or preceding amending SIs. It is with regard to this that I think a consolidated version of the primary legislation with all the amendments made by the relevant SIs incorporated should be freely available on the relevant departmental website or on the Department for Constitutional Affairs’ proposed statute law database. Such a baseline version must exist, as otherwise it would be impossible to produce the SI. We had evidence from the Kent Police College concerning the difficulty of knowing which sections of primary legislation had been activated by an SI. An example was quoted whereby a section of a33 year-old Act—the Criminal Justice Act 1972—still had unactivated sections which could be brought into force at 21 days’ notice, giving the police new powers of which they might be unaware. Another issue that concerned us was ensuring that adequate publicity was given to SIs affecting the general public. There was one instance, to which I believe the noble Lord, Lord Filkin, referred, concerning the use of licensed waste disposal operators or skip hirers, where we felt that very inadequate provision was made to inform the public of their responsibilities in this matter. Similarly, we had misgivings on the varying impact of SIs on large firms with comprehensive legal departments versus an SME or voluntary organisation where there may be nobody available to be made aware of the significance of the SI or to take any action to implement it. In many cases, it will just be ignored. Another problem that we observed, and into which no doubt the noble Viscount, Lord Colville of Culross, will go in some detail, is the transposition of EU legislation by SIs imposing undefined penalties for undefined offences that can be determined onlyby extensive trawling through the parent EU legislation—something quite impractical for most members of the public, such as a farmer who may well be affected by such an SI. Details of the offences and penalties should be clearly defined on the face of the SI in such instances. Management of the SI process and ensuring that adequate time is allowed for scrutiny and subsequent debate have been constant subjects for concern. On too many occasions the 21-day rule between the laying of the SI and its coming into force has not been observed. While there may be some emergency occasions when this is justified, in most cases it is not. The situation becomes even more acute in the run-up to the common commencement dates in April and October—the latter occasion being aggravated by the long Summer Recess preceding it. Departments must plan to ensure that there is always time for adequate parliamentary scrutiny. Other suggestions in our report were that more consideration should be given by departments to whether an SI was the best way to achieve the objective required, or whether a non-legislative approach was possible and desirable. I have enjoyed my time on the Merits Committee. I thank the noble Lord, Lord Filkin, for introducing the debate.