Last Wednesday in Grand Committee we had a debate on a report from the Merits of Statutory Instruments Committee. The report was on post-implementation reviews of secondary legislation. It may sound a dry and complex topic, but it is extremely important. A large volume of law each year takes the form of secondary, rather than primary, legislation, with ministers making a large number of orders under powers granted by Acts of Parliament. Each week in the Merits Committee we have a large bundle of secondary legislation to consider.
Secondary legislation can and does have a significant impact, both on individuals and organisations such as companies and charities. Much regulation is through secondary legislation and it has a major cost to business. Government Departments are responsible for reviewing the impact of secondary legislation for which they are responsible. Such post-implementation review, as the Merits Committee report demonstrated, is patchy, with some Departments having a good record of review and others not. The Government is seeking to ensure more consistent review. It wants to encourage best practice and it accepted various of the committee’s recommendations.
I spoke in the debate and highlighted two problems. One is the fact that, whatever the intentions of Government, there is no enforcement mechanism. The centre may give guidance to Departments, but there is no means of ensuring the Departments follow that guidance. The other problem is that Parliament itself has no means of examining the reviews and identifying and disseminating best practice. I have advocated a Joint Committee on Post-Legislative Review – to look at the reviews of Acts of Parliament, identifying whether they have achieved their purpose – and the remit of such a committee could usefully encompass post-implementation reviews of secondary legislation. That way, Parliament would have a way of identifying whether Departments are doing a good job in checking the effect of secondary legislation and be in a position to call to account those that are not. In replying to the debate, the minister, Lord Davies of Abersoch, did not address my point about enforcement. He did, though, concede that the idea of a Joint Committee was a good one and worth considering. I quoted him in my debate the following day on strengthening the House. The Leader of the House, Baroness Royall, endorsed what Lord Davies had said.
It is something I shall be pursuing. As I say, it may sound a dry and rather dull subject but it is extremely important in terms of checking what impact – intended or unintended – secondary legislation has in this country. We need to be as vigilant as possible in scrutinising the impact of both primary and secondary legislation. It matters enormously.
This is another use for sunset clauses. All clauses which enable secondary legislation should expire without proper Parliamentary review, to encourage departments to use the facility correctly (too much and there’s no time for new stuff so it would be self-limiting).
There are some shocking ones in the works at the moment – the home education part of the CSF Bill has been described as a skeleton, where the government get to quietly fill in the details later with no real accountability. It is quite frightening to read – basically asking Parliament to hand DCSF a blank cheque to write a set of rules as it sees fit and, based on the department’s track record, an ominous prospect.
I have heard that the Digital Economy Bill has been similarly written, to allow a government department to write the rules afterwards.
There is no doubt that some secondary legislation is needed to allow easy updating of parts of Acts that are known in advance to change such as fees, but the whole point of the Parliamentary process is to give legislation proper scrutiny and if it’s not written in what’s presented to those responsible, how can they be expected to do that?
I think there should be some guiding rules as to what is allowed to be defined in secondary legislation and a very good reason needed to stray outside them.
For example the DfT regs on the meaning of electric bicycles varies year by year and depends on the mechanical innovation in the industry, and anomalies thrown up by it.
In the push bike industry it would be futile to waste time considering it, and leaving it to the DfT boffin who does these things, is quite the most obvious arrangement.
However according to the debate linked, the
Teaching profession complains that
the DofE puts too much through as secondary legislation or regs, as to make monkeys out of all of the teachers.
Perhaps a sample from each dept each year might help to resolve the problem.
It may only be a question of deciding what is for the chamber and what is not. There are probably peers who are interested in electric bikes and would raise the matter if the procedure went drastically wrong, but since it has been in use for a good many years ,there is probably no reason to worry about it…… unless there is a Sinclair-like change in the inventiveness of those who seek to use the roads in such a way.
Yes, sometimes technology is one step ahead of the law, but even there the law needs to be careful in not allowing the government a free hand to change things without cause and oversight.
Even fees and charges, Dave H, could be inflation-proofed within the primary legislation were it to be drawn up properly.
Well of course many countries don’t use fixed amounts in legislation but use defined categories/bands. So at a later date the min/max amount of a fine/penalty etc can be altered across all legislation by a single vote to alter the amount for a given fine band.
GG296 24th Feb Quote:
“previous study of the cumulative impact of statutory instruments on schools showed teachers struggling under the constant stream of instruments. They complained that the department was not waiting to see whether the policy had bedded in before changing it and no one appeared to be evaluating”
This gives every indication of incompetence in the govt dept in question, in the guise of being hyper efficient, which is unfortunate.
Isn’t all secondary legistlation illegal?
ie. Enabling acts that allow dictatorship by ministers gone
In a landmark decision seven Supreme Court justices ruled that ministers acted unlawfully in imposing financial restrictions on individuals without a vote in Parliament. They allowed a challenge by five men who had their assets frozen.
http://business.timesonline.co.uk/tol/business/law/article7004263.ece
No vote, not a law
Wolfgang: You appear to have misunderstood secondary legislation – it constitutes powers conferred by a parent Act on ministers. As long as ministers act within the powers conferred, their action is perfectly legal.
“CSF Bill has been described as a skeleton, where the government get to quietly fill in the details later with no real accountability. It is quite frightening to read – basically asking Parliament to hand DCSF a blank cheque to write a set of rules as it sees fit and,”
That was done in 1944 education act with the words “Or otherwise”, and it was an extremely effective blank cheque as you put it until the 1980s.
That was the only mention of home education…. or otherwise.
There was no secondary legislation connected with it, at any time, nor any need for it.
Exactly – no secondary legislation needed, unlike the current offering which provides a brief description as wide as a barn door and is full of provision for secondary legislation.
Giving the citizens a blank cheque to do as they see fit (within reasonable bounds) is a lot different to giving the government the power, because their definition of reasonable is often different to that of the man on the street and much harder to test in a court of law. The US recognised this in its constitution and provided all sorts of hoops for government to jump through when dealing with its citizens, recognising that it has a lot more power than it really should and needed its shoelaces tied together to keep it under control.
Dave H: Thanks for your comments. It is precisely because of the problems you identify that the Lords established the Delegated Powers Committee and more recently the Merits of Statutory Instruments Committee. It is also one of the reasons I am pressing for a Joint Committee on Post-Legislative Scrutiny. One other point in my speech – very relevant to your concerns – is that the House should be willing to reject secondary legislation that is clearly deficient. At the moment, we tend to pass motions urging Government to withdraw proposed regulations. If they are clearly not adequate, we should reject them. Government can then come back with better drafted proposals.
Does the noble lord mean the regulations that come through from each department of state to be passed on the nod, when he refers to “secondary legislation”?
It sounds like it.
If that is so, Dave’s riposte would be of some concern, ” to allow a government department to write the rules afterwards”, but I have my doubts that it would.
An example (which will probably format horribly):
====================
19G Appeal against authority’s decision
(1) Regulations made under this section shall—
(a) confer a right of appeal on a parent to whom a local authority in England have given notice under section 19B(5)(b) or (c) or
19F(3), and
(b) make provision in respect of appeals brought in exercise of that right.
(2) The regulations may, in particular make provision—
(a) about the period within which a right of appeal may be exercised;
(b) for the extension of the registration period provided for in section 19D in a case where a right of appeal has been exercised;
(c) about the person or body to whom an appeal lies and the powers of that person or body;
(d) for the payment of an allowance or the making of other payments to that person or to members of that body;
(e) about the matters to which regard is to be had in considering an appeal;
(f) as to the procedure on appeals.
====================
As you can see, there is no clue in there as to the nature of the appeals process or whether it is fair and reasonable. Some aspects, such as the power to pay the person(s) hearing the appeal are OK, but there is nothing to stop a requirement that all appeals shall be filed in person in a goat shed in the Outer Hebrides (OK, a bit extreme) or how the person hearing the appeal is appointed or even what matters may be considered in an appeal. I consider this to be abuse of power and would hope that the Lords insist it is better defined and tightened up, given that attempts to amend it in the Commons failed.
Yes, coming to a chamber near you (some of you, anyway), next week.
I forgot to mention that the extract is from Schedule 1 of the CSF Bill, Second Reading due in the Lords on 8th March.
“It is always satisfying to see in a government response to a committee report the words, “The Government agree with this recommendation””
Is government agreement necessarily the best measure of quality as they are doubtless going to agree with those things that are politically helpful, place least/no burdens or restraints on government or which they are kicking into the long grass. I tend to think any proposal that has the government up in arms is worthy of more consideration!
“there is no mechanism within the Government for ensuring compliance, and in terms of external accountability-especially to Parliament-there is no mechanism for comprehensive and consistent accountability”
I’m not sure if it’s the preponderance of dentures in the Lords’ but while the Joint Committee proposal gives some improved level of scrutiny peers still seem against anything with real teeth to force departments to actually do anything.
🙂
I don’t mean anything too destructive of government machinery but at least some mechanism sufficiently publically embarrassing or frustrating as to make complying less effort than continuing as at present to do as they wish.
The remarks in the debate over the 50 million threshold did seem shocking as 50 million in one industry can be a trivial grain of sand and in another bankruptcy. I’m not sure even a sliding scale would help that much unless it recognises the relative sizes and robustness of the industries being affected.
In general, if the Government doesn’t agree with the recommendation then it will get voted down by the majority they have, at least in the Commons.
Dave H: It is the Government that generates the secondary legislation. If the Lords votes it down, the Lords cannot be overridden. The provisions of the Parliament Act do not apply to secondary legislation.
Croft: I have previously drawn attention to Government responses which appear to be very positive (‘good idea’, ‘we agree’ etc) but which actually offer no change to existing practice. I like to think that one recent occasion when I did that may have prompted the Governmen to actually do something! I agree about the need for teeth. To some extent, we have them but have not used them. That is, we have the power to vote down secondary legislation. Our power to do so is unqualified. I take the view that if a statutory instrument is demonstrably deficient, we should vote it down. Government can then come back with one that meets the objections raised.
Couldn’t agree with you more, Lord Norton.
One immediate question comes to mind: should there be a level of public involvement in post-legislative scrutiny?
ladytizzy: Yes, absolutely. Part of the process of post-implementation review involves consulting with those affected by the provisions. A committee on post-legislative scrutiny could and should engage as much as possible with the public. I think this applies across the board in relation to our activities.
Does European delegated legislation come under the umbrella of Secondary legislation?
If it does, then there is huge potential for MORE scrutiny!
It probably refers only to Govt dept regulations, and to refer to the individual in the civil service, who submits the Secondary legislation, for rubber stamping, should be sufficient.
“Post legislation scrutiny” can only mean going back to that official and asking him precisely what he meant and why, by submitting that regulation?
The consistency of the Bike/electric bike/ motorbike/trike/ quadricycle/Quadbike…Uni cycle and their differing meanings and definitions ,is awe inspiring in its accuracy , and you would not expect changes to be discussed as Bill in parliament!
Whilst the consistency of the bike etc may or may not require more scrutiny, equipment such as that to monitor IP addresses and downloads certainly would. Certainly one would need someone, an expert, to point out that which would require more scrutiny.
I find muself in agreement with the Noble Lord.
Gareth Howell: Proposals for EU legislation go to the European Union Committee of the House and are then referred to one of the seven sub-committees for consideration.
“the Merits Committee we have a large bundle of secondary legislation to consider”. !!!
If you worry about things like that you will worry about anything!
One thing I noticed about the debate was the word “policy” in the context. Policy may merely be the policing, as in Carl’s, or my, example, by one person in the dept., of the salient secondary legislation which goes through the Merits committee in the bundle.
Policy is not an abstraction; it is the policing of the Law by the civil servant.
In the case of the Education reg I have highlighted above,from the debate, it may just be crazy polic(y)ing by one civil servant, which is causing the trouble, and yet be causing havoc with any number of teachers.
It and he/she must be rooted out.
I like the way the noble lord says it is “extremely important”! Either he has got a sense of humour or……. fill in the missing quiz question!
I see on the BBC (http://news.bbc.co.uk/1/hi/uk_politics/8549112.stm) that the Lords have put a roadblock into the Digital Economy Bill to chop out a bit of proposed secondary legislation, so there is obviously a line that the Lords thinks should not be crossed.
I’m not convinced by the alternative, given that the nature of the internet means it can be trivial to circumvent censorship and breaks in connections. We risk being classified in with China and Australia.
Quite Dave, it’s something of a perverse achievement to throw out one technologically illiterate and illiberal clause and manage to replace it with one just as bad or probably worse.
“Digital Economy Bill to chop out a bit of proposed secondary legislation”
If it is in the Bill, it is not secondary but primary legislation.
I have read the link and dealing with some of the bill as secondary legislation would probably not be objectionable.
If the parlamentary draughtsmen can not themselves decide what should or should not be in the Bill for debate, then they have really got to include it, and wait to see if anybody wants to delete it, which is apparently what has happened with the lobbying from Google.
The search engines themselves want to provide more direction to the searches their clients make, and I, for one am rather fed up with
Google trying to rearrange my choice of URL
for example by not providing as good ‘copy and paste’ of URLs as they did four or five years ago. The new browsers want to decide where you do your business, for you.
What is (was?) in the Bill was the clause allowing the minister to make up the rules later (i.e. the secondary bit). That has now gone. Whether the replacement is better is open to question.
However, I suspect the Bill is now dead in the water because my understanding is that because the Lords have changed it, it must go back to the Commons for ratification of that change, and so might not have enough time for that to happen.
“What is (was?) in the Bill was the clause allowing the minister to make up the rules later (i.e. the secondary bit). That has now gone”
As minister responsible, by chain of command, for the actions of his civil servants, he always does have that right.
You say that in this particular Bill the reference to secondary legislation is now gone, which would not make any difference, to a need for secondary legislation, if there is one.
I was thinking what effect the complete NON-existence of the “Merits Committee”, on which lord Norton serves, and which he decribes as “extremely important”… what effect it would have, if there were no committee at all, to receive the bundle every month or so, and take most of it as read.
Problems of civil service incompetence would arise, such as the apparent rule and regulation maniac in the DES, and they might go unchecked and undiscussed, although internal department meetings would usually resolve them. There would be no parliamentary mechanism to deal with them, trivial as the mechanism may be.
The minister’s job is to know when such wrongs are happening ,and put them right.
The committee’s job is to check up on the govt minister’s competence and keep him accountable.
It is all a question of checking and checking again, to ensure that Secondary Legislation is not bad regulation or rule, concocted by a civil servant who, for example, may have panic attacks or go temporarily crazy whilst dealing with the rules!
There are megalomaniacs and empire builders in the civil service too.
It does make an impression on representative politicians, to receive a huge bundle of regs every couple of weeks, as a reminder of the vast number of regulations that go through without being debated by parliament, only debated by the permanent staff themselves.
A certain Prof Howarth, a Cambridge Law prof, made a similar such fuss in the other place when he first got elected, a couple of years ago, concerning Law that is made with only nominal reference to parliament, but I decided after re-reading his opinions, that he was only doing so as a
teaching exercise, (and as a new member of the HofC),…… an exercise like noble lord Norton’s mind boggling personality quizes!!! Heh! Heh!
“secondary legislation implements EU directives”
but the Merits committee would not deal with it. The question was… “Who does? and is it done with integrity, and how is it amended?”
So EU delegated legislation is ALSO secondary legislation but dealt with in a different way. I agree with Lord Norton in that case, the Delegated Legislation committees are hugely important.
Without them Nigel Farrage UKIP, would have every justification in saying that our own values are being eroded without any check or balance at all. Even with DL HofL committees that is still so.
Lord Rosser also wisely points out that the upper limit of £50m for carrying out something which has been passed on the nod,
as law from a permanent,civil servant is rather high!
His contribution to the debate re the statistical office advice and methods of evaluation of the bundles over the years was a valuable
one, and worth reading, Dave!
“debate in LN’s post”
I see a gap in my understanding here. To what extent is secondary legislation exposed to the scrutiny of Parliament? Does it all have to be approved or is it only particular pieces that have been specified to require approval? I ask this because of seeing a proposed amendment to a Bill that required all secondary legislation contained in specific sections of the Bill to be laid before Parliament. Presumably without that, the minister can do what (s)he likes?
Obviously the Lords can only vote on that which is put before them.
Dave H: Secondary legislation is subject to different types of parliamentary approval. The parent act stipulates which procedure applies. Some secondary legislation is subject to the affirmative resolution procedure: that is, it requires a positive vote of both Houses of Parliament. Others are subject to the negative resolution procedure: that is, it takes affect unless within 40 days a motion is tabled (known as a prayer) and passed by either House. Some secondary legislation is minor and not subject to parliamentary approval (a commencement order for parts of an Act, for example). In the Lords, the Delegated Powers Committee examines all Bills to check that the procedure included in respect of secondary legislation is appropriate. If it recommends change, the Government usually accepts that recommendation.
Probably on a final not on this thread I can see where the noble lord Norton comes from on his concern for the importance of the two committees:
Merits and Constitution+Governance.
That precisely those civil servants who are being given a guiding set of principles by Governance, are also those who are providing
the detail for the bundles that Merits has to consider.
That DES staff member who may be making his own laws, and upsetting the teachers in schools, is also the one whom C+G is trying to encourage and motivate to act properly!
Thanks to Lord Norton for the thread, and the time he is prepared to spend working with the blog.
Thanks also for the fine detail in his last post.
Wolfgang: You appear to have misunderstood secondary legislation – it constitutes powers conferred by a parent Act on ministers. As long as ministers act within the powers conferred, their action is perfectly legal.
My reading of the Supreme Courts decision, with the link, is that legislation that hasn’t been subject to a vote in Parliament is ultra vires.
So secondary legistlation, implemented by ministerial dictate, has not been voted on directly by parliament. The enabling legistlation, but the not the law being dictated.
It’s all illegal.
I will also add this for Phillip Norton.
You’ve complained when I’ve referred to parts of government as Fascist.
Enabling acts that allow Ministers to create laws (or secondary legistlation), without it being voted on by Parliament, and by passing the law is very simply Fascist in nature.
Wolfie,
The remark is too glib to be worthwhile.It is a feature of all national law making bodies worldwide.
Legislatures could not function without it being so.
However if you check the “debate” link offered by Lord Norton in the first lines of the intro post, you will find Lord Rosser’s instructive explanation of the statistical Sampling methods used.
It did occur to me, that for example, after the first world war, there were very few trained civil servants indeed in Germany mainly because they were all dead on the battle field.
A reliable tradition in a govt department
for the collection and analysis of statistics of such a sort, would require continuity of personnel in those departments, which neither Germany in 1918, nor indeed in Moscow with regard to non-state capitalism in 1990, possessed.
Geoffrey, Lord Howe was motivated to go to Moscow in his previous capacity as chancellor of the UK exchequer, to offer his own advice
on the problems of rampant inflation that existed in that country at that time.
The lack of stats was the problem.
It may be said, as an aside, that comparative economics is an essential discipline worldwide in such a way that ALL developed nations must have a way of putting regulations, through legislatures, which are so small that they are insignificant to discuss, but so big that a complete failure to exercise the regulation mechanism (described just above by lord Norton,)would result in a collapsing economy, or legal system.
The civil service is relied upon to make the regulations, and the stats have to be correct for them to be relied upon!
But the Minister for Europe is still saying, in 2010, “An independent study conducted by the House of Commons Library between 1998 and 2005, based on the statutory instruments passed with references to European legislation put the figure at 9.1%”
Whereas various others put the figure for EU legislation passed into UK law at between 50% and 85%. The reason for the discrepancy is that the Minister is economical with the facts. It would be far more honest to add all the statutory instruments coming into force in a given year, subtract the directives and the handful of regulations that give rise to new UK laws and then compare that number to all EU directives, regulations and decisions applicable to the UK coming into force in that same year and work out that percentage. Although that would be a difficult task, the resultant figure would dwarf the 9.1% figure, but there is no need to go to that effort as, in the real world, we are only too aware of the impact of these directives, regulations and decisions because they are affecting us on a day to day basis. Just ask ex-sub post masters, ex Ravenscroft steel workers, ex Anglesea aluminium smelters, ex farmers ex fishermen etc etc. The rest of us, in the real world, see the impact of these EU directives, regulations and decisions on almost everything we touch.
That is why the issue of sceondary legislation is important, IMO. The comments till leave me unclear
Twm O’r Nant MARCH 5, 11:12 AM ““secondary legislation implements EU directives”
but the Merits committee would not deal with it. The question was… “Who does? and is it done with integrity, and how is it amended?”
So EU delegated legislation is ALSO secondary legislation but dealt with in a different way.”
lordnorton, MARCH 6, 11:55 AM “Gareth Howell: Proposals for EU legislation go to the European Union Committee of the House and are then referred to one of the seven sub-committees for consideration.”
How can we see which parts of legislation are based on EU directives, regulations and decisions? This is important because many EU based laws, with their one size fits all formulation, are poor fits to the needs of the UK and introduce regulation after regulation that sink some small businesses.
We need to know. Can your Lordships add some transparency please?