Subordinate Legislation: Transparency and Accountability

Thursday 21st February 2019 Lords Chamber

Question

11:07

Asked by

[Lord Lexden]

To ask Her Majesty’s Government, further to their response to the report of the Joint Committee on Statutory Instruments Transparency and Accountability in Subordinate Legislation, published on 12 June 2018, what additional consideration they have given to the conclusions and recommendations in the report.

[Lord Young of Cookham (Con)]

My Lords, the Government agree with the report’s main conclusions and continue to take steps to ensure that statutory instruments respect parliamentary processes and conventions, are drafted to a high standard and remain accessible to anyone at any time. The committee made one specific recommendation on the free issue procedure, and the Leader of the House of Commons continues to liaise with the National Archives to take that forward.

[Lord Lexden (Con)]

My Lords, diverting briefly from my campaign for justice for Sir Edward Heath, I put down this Question to draw attention to the work of the Joint Committee on Statutory Instruments, of which I am a member, and to the expertise of our quite excellent lawyers, who go through every instrument line by line—indeed, word by word. The committee has been increasingly concerned recently about the number of drafting mistakes being made by departments. Will my noble friend pursue that issue? In the report referred to in the Question, stress is laid on the importance of avoiding delays in publishing instruments and laying them before Parliament. Will Ministers impress on departments the need to ensure that delays do not occur?

[Lord Young of Cookham]

I pay tribute to my noble friend, those who with him work on the JCSI and the lawyers for their important if unglamorous work in scrutinising subordinate legislation, not least because their work rate has had to increase substantially due to the increased flow of SIs.

On corrections and errors, the Government have laid more than 1,500 SIs in the Session to date, not all related to Brexit. As of a recent report, the committee has for one reason or another reported on 136 of them. In nearly three-quarters of those cases, the Government either made a correction, provided further information or gave an undertaking to do so. On delays, of the 582 SIs considered by the committee since its report in June last year, only one has been reported for an unjustified delay and only one has been reported for an unjustified breach of the 21-day rule. Clearly, we hope to improve on both performances. More resources have been given to departments to improve their performance. I note that in its interim report on the current Session the committee states that,

“the overall percentage of errors in SIs has decreased”.

We are working hard to maintain progress.

[Lord Rowlands (Lab)]

My Lords, it has been a privilege to have served on this committee for a number of years; indeed, at various times I have chaired the committee and I was very much involved in the preparation of this report. As the Minister said, scrutinising statutory instruments can sometimes feel a rather remote, distant, especially technical thing to do, but one must never lose sight of the fact that a statutory instrument can seriously influence or affect a citizen’s rights or duties, so it is particularly important that statutory instruments are accessible. In our report we make specific recommendations to make sure that statutory instruments and the relevant documents are available and accessible to individual citizens. Paragraph 4.9 says:

“Accessibility to legislation is … of obvious importance for the maintenance of the rule of law”.


I hope that the Minister will impress upon the department the significance and importance of making these instruments and relevant documents accessible to citizens.

[Lord Young of Cookham]

I agree with that section of the report that deals with accessibility. Given their increasing availability on the internet, we hope that statutory instruments are more accessible than they were when they were available only in hard copy. We are in touch with the National Archives, which has responsibility for putting these SIs online, and we have taken on board the one specific recommendation in the report about making sure that those who originally had access to a document that was subsequently changed have access to the change without having to make special efforts to find it. I endorse the words of the noble Lord about the importance of SIs: that is why the JCSI and the Secondary Legislation Scrutiny Committee have a key role to play.

[Lord Sharkey (LD)]

My Lords, we see too many skeleton Bills. The Healthcare (International Arrangements) Bill is the latest example and one of the very worst. These Bills force us to use secondary legislation scrutiny procedures for what should properly be in primary legislation and subject to amendment. Then there is the flood of Brexit SIs, many laid without proper impact assessments or consultations. We debate but we cannot amend and we are unwilling to reject. We have in fact rejected only seven SIs in the last half-century and this does not lend itself to effective scrutiny. Does the Minister agree that we need a thorough review, both of the use of skeleton Bills and of our procedures for dealing with SIs?

[Lord Young of Cookham]

The noble Lord’s question goes slightly broader than the narrow Question about statutory instruments’ transparency and accountability. On his first point, it is a matter for the DPRRC to draw attention to primary legislation where, in its view, too many powers are being subjected to subordinate legislation. The House, as it knows, can amend legislation as it goes through, and the Government have indeed amended legislation in many cases where the House has expressed the view that too much has been delegated. The particular Bill the noble Lord refers to is being debated later today. On his other question, about a wholesale review of statutory instruments, that goes slightly broader than this Question and at the end of the day it is a matter for the House and not the Government whether it wants to change the way it scrutinises legislation.

[Lord Judge (CB)]

My Lords, the Minister was present when I suggested on Monday that it was something of a disgrace that it is 40 years—1979—since the House of Commons last rejected a statutory instrument. Can the Minister be persuaded to ask the Post Office to issue a commemorative stamp? That way, we will either remember the process and revitalise it or accept that it has been consigned to the dustbin of history.

[Lord Young of Cookham]

I am grateful to the noble and learned Lord. I was present in the House of Commons on that historic date but I cannot remember which side I was on, because I cannot remember whether it was before or after the general election in 1979. The noble and learned Lord’s suggestion of a commemorative stamp is a good one, but it might be subject to a statutory instrument.

[Baroness Smith of Basildon (Lab)]

My Lords, I add my appreciation of the Joint Committee for the work it does, which is hugely valuable, particularly when we have so many statutory instruments coming forward. However, the noble Lord and the committee rightly made much of avoiding delay, and I make a plea about accuracy. One of the problems with SIs, understandably, is that they cannot be amended. If, in the Government’s haste to get so many through in such a short time, they are not accurate, as my noble friend Lord Rowlands said, that has enormous consequences. Can the Minister consider—I do not know whether he knows the answer to this—how many days there are between an SI being published in draft form and its being debated? That is when there is an opportunity to pick up any inaccuracies. Does he think that sometimes, they come through a little more quickly than one would anticipate is necessary to allow proper scrutiny prior to their being tabled?

[Lord Young of Cookham]

Affirmative resolutions cannot come into effect until they have been debated in both Houses, while negative ones should be laid in draft 10 days before they are made and 21 days before their coming into force. Those 10 days are to give the committee time to recommend a change from a negative to an affirmative resolution. In the 48 cases where it has made that recommendation, the Government have agreed. On errors, as I said in response to an earlier question, the overall percentage of errors in SIs has decreased and we are working hard to maintain progress.