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Reform of the use of Statutory Instruments

2 Comments 2nd July 2010

Statutory Instruments serve a purpose–allowing legislation to be amended, clarified or updated without a full Act–but they can also be used to push through changes that Parliament did not intend when it passed the Act.  As such, they remove power from Parliament and thus from elected representatives.  As http://www.parliament.uk/about/how/laws/delegated/ states, "About two-thirds of SIs are not actively considered before Parliament and simply become law on a specified date in the future.  SIs are normally drafted by the legal office of the relevant government department."  Surely legislation passed by lawyers suffers from a lack of democratic legitimacy?  Returning this power to parliament would be highly desirable.  Since, moreover, Statutory Instruments make up a fairly large proportion of our legislation and certainly of our delegated legislation, I consider the current situation extremely problematic.

I think that there are two steps required to deal with this issue.  First, Parliament should review all Statutory Instruments, which were not debated in Parliament, stretching back to a specified point in the past.  The point should not be political, i.e. not 1997.  A Select Committee or specially appointed Committee could oversee this process.  It could be time-consuming, but could throw up huge rafts of legislation that could be repealed or that needs to be amended.

Second, as a matter of course, it should be Parliament that proposes Statutory Instruments, rather than the Civil Service or Government.  The relevant department could notify the relevant Select Committee of an issue that has come to their attention and ask the Committee to consider a Statutory Instrument.  In this case, the House of Lords Merits of Statutory Instruments Committee will assess the merits of Statutory Instruments against certain standards, and there is no need for an equivalent in the Commons.  It would only duplicate a function, creating unnecessary expense.  However, the standards should be tightened to ensure that Statutory Instruments are passed not only in light of the criteria cited at the above mentioned website, but that they are also 'in the spirit of the parent Act', subject to modifications to that spirit in light of the other criteria.  This will a) reduce the number of Statutory Instruments and b) ensure that the majority of Statutory Instruments arise out of Parliament rather than the Executive.

Where, however, the Government feels the need to pass the Statutory Instrument faster than this process would allow, or, if the Committee chooses not to pass one and the Government feels there is an overriding public interest at stake, the Government should still be able to propose them.  However, the Commons should institute mechanisms to ensure better Parliamentary oversight of Statutory Instruments.  I don't think that simply displaying all changes for MPs to check and challenge them would be sufficient.  Even if some MPs were conscientious enough to read these regularly, many would surely not do so.  Conversely, bringing every Statutory Instrument before Parliament would be excessively time-consuming and expensive.  Since there is no Commons equivalent to the House of Lords Merits of Statutory Instruments Committee, I think that Government proposed Statutory Instruments should come before the relevant Select Committee in the Commons, which could then either pass them or put them before Parliament, but not block them.  Where necessary, these could be pushed to the top of the Committee's agenda.  I do not believe it would be preferable for a specialist committee, like the Lords Merits Committee, to be used in this instance: such a committe would not have detailed knowledge of legislation in every department.  Current Select Committees do.  The Lords Merits Committee would then have detailed knowledge of the broader picture when it reached there and it would bring that perspective to bear upon the Statutory Instrument.

Why does this matter?

Parliamentary oversight of all Statutory Instruments would increase the democratic legitimacy of the legislative process significantly.  The key is not the exact mechanisms I have suggested, though I hope they would serve the purpose, but that Parliament has better oversight of Statutory Instruments.  As such, it is not that Statutory Instruments are seen to have greater democratic legitimacy, but that they do have such legitimacy.  It is not a single Act that needs repealing or replacing, but an entire legislative process.

This reform is a means of returning power wholesale to elected officials, away from the Civil Service and the Government, and should be seen as a litmus test of your, the Government's, commitments to do this.  And the more power elected officials have, rather than the Civil Service or the Government, the stronger will be the link between MPs and their constituents.  Constituents, that is, the electorate, will then weild greater power over their MPs, thus renewing democracy in this country. 

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2 Responses to Reform of the use of Statutory Instruments

  1. Susanna Rees says:

    statutory legislation is leaving the door open to the corporate sector – or any one else for that matter – building into government laws that give preferential treatment to the corporate sector and protect it from the rule of law. In extremis, it could open the door to absolute powers that do not reflect democracy. The Health and Social Care Act and the powers that enable the private sector to dismantle it, are being enacted in Secondary Legislation with no mandate from teh public and no discussion about what this really means and what the effect is going to be in the long-term, because we have not been shown the risk assessment. Government is even denying that it is happening.

  2. Susanna Rees says:

    Statutory legislation leaves the door open to the corporate sector – or any one else for that matter – building into government laws that give preferential treatment to it as a social group and offer it special protection. The corporate sector has much greater access to Parliament than the public has as it is regarded as more important than voters. Even though it has no vote.

    In extremis, Statutory Legislation opens the door to absolute powers that are the antithesis of democracy.

    The Health and Social Care Act and the powers that enable the private sector to dismantle a public sector service, are being enacted in Secondary Legislation with no mandate from the public and no discussion about what this really means and what the effect is going to be in the long-term, because we have not been shown the risk assessment. Curiously, Government is even denying that it is happening.

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