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Parliament needs more effective procedures for scrutiny of Statutory Instruments

3 min read

How many MPs have sat through a Delegated Legislation Committee (DLC) and thought it a complete waste of time?

How often have MPs been pressganged by their whips into debating an issue in which they have no constituency or political interest and no expertise? When I was Leader of the House of Commons and Chief Whip in the late 1990s, it was a struggle to persuade 17 Members to serve on DLCs. I doubt the situation has changed.

Yet each Session the House of Commons sets up hundreds of these DLCs, squandering that most precious commodity in politics: MPs’ and Ministers’ time.

Abolishing these DLCs and replacing them with permanent Regulatory Scrutiny Committees is a key proposal of the Hansard Society’s Delegated Legislation Review. As Chair of the Society, I’ve been working over the last 15 months with colleagues across the political spectrum - from Steve Baker (Cons) to Dame Angela Eagle (Lab) to Kirsty Blackman (SNP) – and across both Houses, to support the Society’s research team in developing a comprehensive set of proposals for reform. The Society has now published a Working Paper setting out 13 reform proposals for consultation until 20 March. We would welcome your views.

We think parliamentarians today should decide what scrutiny an SI merits based on the legislative text in front of them, not based on what the ‘parent’ power in an Act prescribes, particularly when that Act may have been passed in a previous Parliament, perhaps decades ago. A new Statutory Instruments Act should break the link between the powers and the procedures; the last SI Act was passed nearly 80 years ago, so it’s well past time for an update. 

We need a scrutiny process that prevents needless debates on uncontroversial measures, but ensures that more controversial Instruments receive the scrutiny they deserve. So, we propose to abolish the “negative” and “affirmative” scrutiny procedures and adopt a streamlined system. Members need support to separate the wheat from the chaff and identify the legal and political significance of any SI. A new Joint Sifting Committee should triage all SIs. Those SIs the Committee determines merit further scrutiny, should be sent to the new Commons Regulatory Scrutiny Committees for detailed consideration. The crucial sifting process should be supported by a new Parliamentary Office for Statutory Instruments. The support available to Members for legislative and regulatory scrutiny is significantly under-resourced. That needs to change.

The current “all or nothing”, “take it or leave it” nature of the SI process also disincentivises scrutiny. But amendability undermines the principle of delegation and raises the spectre of legislative ping-pong for SIs, with implications for the use of parliamentary time.

So, rather than a power to directly amend the text of an SI, we suggest that amendable approval motions should be introduced in the Commons, so MPs can propose changes to an SI before it is approved. And the House of Lords should have a new “think again” procedure so that Peers can ask MPs and the Government to engage with their concerns.

There are strong constitutional arguments for improving scrutiny of Statutory Instruments. But there are also strong practical and political reasons to do so. The most important is that the price of poorly scrutinised legislation is paid by citizens across the country who are subject to its detrimental effects. This is not a partisan issue. It’s about Parliament having the procedures in place to do its job properly on behalf of the public we serve.

The Hansard Society Delegated Legislation Review Working Paper can be downloaded here. The consultation deadline is 20 March.

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Read the most recent article written by Baroness Taylor of Bolton - Parliament needs more effective procedures for scrutiny of Statutory Instruments

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