Politics

I chair a Lords scrutiny committee. These are my parliamentary resolutions for 2021

The remarkable year we have come through contains vital legislative lessons

January 04, 2021
Image: Pixabay
Image: Pixabay

I chair the Secondary Legislation Scrutiny Committee (SLSC) of the House of Lords. It is a cross-party committee and has responsibility for reporting to the House on every statutory instrument (that is, minister-made legislation using powers conferred by parliament) subject to a parliamentary procedure. The workload is a heavy one—in the last 12 months, we have scrutinised 901 instruments and, where appropriate, drawn to the attention of the House important public policy issues, deficiencies in the conduct of consultation exercises and instances of poor supporting explanatory material.  

It has been a turbulent year—to say the least. Parliament has had to adapt in ways that would have been unimaginable at the beginning of 2020. Reflecting on the events of the past 12 months, what New Year’s resolutions should parliament and the government make for 2021?  

First and foremost, parliament should continue to be vigilant about the balance of power that is at the heart of our constitution. The right of the legislature (parliament) to resist any encroachment on its powers by the executive (government) is central to our democratic system. The pandemic has, on occasion, required the government to act quickly and we accept that, but it has also given rise to renewed concerns about executive “mission creep.”  

In support of that first resolution, parliament should continue to object to the use of “skeleton bills.” Law is made up of both primary legislation—bills which later become Acts of Parliament—and secondary legislation—regulations and orders. Bills are subject to the full panoply of parliamentary scrutiny and they set out, among other things, the principles underpinning new law. 

Secondary legislation, on the other hand, is intended to fill in the details about how the law is to be implemented; and is subject to a much lower level of scrutiny than bills. This is in part because regulations, unlike bills, are unamendable: parliament can only agree to them or reject them. Limited to the “nuclear” option of complete refusal, neither House has felt inclined to press the button except in the most exceptional of circumstances.  

Given this, it is not surprising that the executive can be tempted to put as much of the law as possible into regulations. The result is skeleton bills with all the muscles and sinews left to regulations. These are easier and quicker for the government to alter and, perish the thought, less embarrassing to remedy when the law of “unintended consequences” reveals serious flaws in the original policy.  

In recent years, several skeleton bills have been introduced to parliament. One way to prevent this becoming the norm would be for the government to amend its “Guide to making legislation” so that ministers and drafters are urged—right from the off—not to propose a skeleton bill. It is essential to make this clear at this early stage because once the skeleton bill has been drafted, the horse has already bolted! So, a New Year’s resolution for the government? Put the appropriate level of detail into primary legislation and avoid skeleton bills.  

The pandemic has seen the development of other undesirable practices. So, another New Year’s resolution for the government: commit to stopping them!  

They include for example the practice of making permanent changes by regulations introduced to meet the temporary requirements of the pandemic—such as lasting changes to our planning laws made by several Town and Country Planning instruments. Not only was this process of reform only of tangential relevance to the pandemic but, no less importantly, was of such significance that my committee took the view that it should have been introduced by way of a bill, not regulations.  

Another issue has been a blurring of the line between legislation and guidance. In the first lockdown it was said that “only one form of exercise a day” was allowed—but the legislation itself did not limit physical activity in this way; it was only guidance. At a time when the situation changes week by week it is critical that this distinction between the forms of instruction is made clear. The SLSC has written to, among others, Health Secretary Matt Hancock to reinforce this point.  

There was also a squeeze on the time available for parliamentary scrutiny before regulations came into effect. Of 261 regulations with “coronavirus” in the title, 35 (13 per cent) came into effect before being laid, and 63 per cent came into full or partial effect within 48 hours of being laid. Some were to deal with the emergency, but some were not. It was not clear to us why, for example, a regulation allowing poultry workers into the country to slaughter Christmas turkeys needed to take effect within 24 hours.  

The last 12 months have indeed been exceptional. The SLSC recognises this. But a thriving democracy requires the government to be under constant challenge, and the practices of the past 12 months must not be allowed to become embedded into the system. It is the New Year’s resolution of the SLSC—as it is every year—to remain vigilant and to continue its important contribution to that challenge.  

Lastly, one final New Year’s resolution for government departments. As the pandemic has continued and regulations poured forth at pace, the titles of the instruments have grown in length and complexity, and yet retained a confusing similarity. Take for instance: the Health Protection (Coronavirus, Restrictions) (North of England) (Amendment) Regulations 2020, the Health Protection (Coronavirus, Restrictions) (North of England and North East and North West of England etc.) (Amendment) Regulations 2020, and the Health Protection (Coronavirus, Restrictions) (North of England, North East and North West of England and Obligations of Undertakings (England) etc.) (Amendment) Regulations 2020. Those responsible for naming instruments are urged to give a thought to those—and there are many of us—who are battling to keep on top of which is which!