What next? The Growing Imbalance between Parliament and the Executive – Lords Committee publishes its End of Session report
Wednesday 18 May 2022
The House of Lords Secondary Legislation Scrutiny Committee recently published its report entitled What next? The Growing Imbalance between Parliament and the Executive. The report provides not only a statistical overview of the Committee’s work throughout the session but also its assessment of legislative practices following the publication in November 2021 of its report Government by Diktat: A call to return power to Parliament. This new report highlights further examples of the way parliamentary scrutiny is being side-lined.
During the session, which started in May 2021 and lasted for 12 months, the Committee considered 666 statutory instruments (SIs), 126 of which concerned the Government’s response to the coronavirus pandemic.
The report draws attention to key themes and concerns and highlights areas for improvement. These include:
- Restricting parliamentary scrutiny – As the need to take emergency action in the wake of the COVID-19 pandemic receded, the Committee continued to see SIs which were brought into effect immediately or almost immediately without justification (paragraph 10) and with a failure to consider concerns raised by the House.
- Failing to provide information on impact - In this session, a number of significant instruments were laid which were not only without an Impact Assessment (IA) but where it was evident that the policy had been formulated without adequate analysis of the potential impact. (paragraphs 25 and 26).
- Inadequate information about use of consultation feedback – Throughout the session the Committee saw examples where legislation had been taken forward after local consultation had been conducted, but it was unclear whether the feedback received was then used to inform the final policy decision. (paragraph 36).
- Poor quality explanation – 10 SIs were drawn to the attention of the House on the ground that the Explanatory Memorandum, (EM – explanatory material laid in support of legislation), provided insufficient information to provide a clear understanding to a lay reader of how the instrument’s policy objective would be achieved and its intended implementation. (paragraphs 39-42).
- The availability and appropriate use of guidance – The Committee highlighted issues about the blurring between guidance and legislation, also raised in the Government by Diktat report and other reports during the session. (paragraphs 44-46).
Lord Hodgson of Astley Abbotts, Chair of the Secondary Legislation Scrutiny Committee said;
“The issue of legislative scrutiny has been a problem for some years, but it is a problem, a weakness, which the conditions of modern life and the practices of the Government in recent years has made much more obvious.
“Governments argue that the rate of change in modern life outpaces the ability to bring forward primary legislation fast enough and therefore that secondary legislation must fill the gap. That may – to an extent – be true. However, it means that the challenge for all of us now is to establish new parliamentary procedures to enable effective scrutiny including increasing the ability of external bodies and people to make their views known.
“It will not make the Government’s job easier, but it will make better law and it will play a key role in maintaining general confidence in our democratic system.”
