House of lords dl 04122014

Lords Scrutiny of
Statutory Instruments
(and how to present your case)
Jane White
Legislation Office
HOUS E o f LORDS ©Parliamentary copyright 1999

Levels of delegation
Complete Negative
instrument
Affirmative
instrument
Minister can
make law on
his own
authority
eg closing a
road,
commencement
orders
Must lay
before
Parliament
for 40 days
– can be
rejected by a
motion
Laid as draft.
Cannot come
into effect
until both
Houses have
debated and
approved it
c.2,200 per
year
c. 800 per year c. 150- 200 per
year
Can only be amended by another instrument
SIs with
added
scrutiny
LROs, PBOs
Laid as SIs
but with
special
scrutiny
procedure
set out in
c. 30 pAecr ty.e ar
???
Limited change
possible

Delegated Powers Committee
“whether the provisions of any bill
inappropriately delegate legislative power, or
whether they subject the exercise of
legislative power to an inappropriate degree
of parliamentary scrutiny”
 Government submits Memorandum explaining the
delegations
 DPRRC Reports before Bill’s Lords Committee stage
Pays particular attention to:
 Skeleton Bills
 Henry VIII powers

Legal Aid, Sentencing and
Punishment of Offenders Bill 2010-12
(Gives minister power to set unlimited fines for
offenders.)
“There is no explanation of why the Bill itself
cannot effect the increases now thought
necessary and given the sheer scale of the
offences affected this power is inappropriate,
despite the affirmative procedure.”

Welfare Reform Bill 2010-12
(power to calculate who is entitled to
Universal Credit.)
“We therefore recommend that regulations
made under clause 9(3) and 10(4) should
also be subject to affirmative procedure
on the first exercise of the powers.”

After Royal
Assent
SI SI SI
JCSI
Bill
amendment
s
ACT
Secondary Legislation
Scrutiny
Committee

Secondary Legislation Scrutiny Committee
Considers policy intent
 Welcomes external comment
 May publish further information or
correspondence
 May take oral evidence
 Affirmative debates are not
scheduled until after report
published

SLSC: Terms of Ref
The grounds for reporting an SI are:
 politically or legally important, or gives rise to issues
of public policy likely to be of interest
 [inappropriate in view of changed circumstances
since passage of parent Act]
 inappropriately implements European Union
legislation
 imperfectly achieves policy objectives
 insufficient explanatory material
 inadequate consultation

Outputs of SLSC
 Report which sets out background and issues
concisely – flagged in Lords Business
 Comments within 14 working days of laying to
allow members time to follow up reports.
 Information paragraphs
 E circulation – weekly “news letter”
 Occasional overarching inquiries
eg Cumulative Burden of SIs on schools, Consultation Principles

Example of Report to the House
Draft Social Security (Personal Independence Payment) Regulations
 “There appears to be general agreement that the Disability
Living Allowance system had become flawed ... We commend
the DWP for their extensive consultation ... However the new
benefit also has the objective of decreasing overall expenditure
... which according to figures in Lord Freud's statement on 13
December, means that about 30% of people currently on DLA
will get no award. It is unsurprising that the questions raised in
correspondence to the Committee relate to the guidance, which
is not yet available. As it is so material to the House's
understanding of how the system will operate for
individuals, rather than on a theoretical level, the
Committee suggests that proper scrutiny is not possible if
the guidance is not published before the debate”
SLSC 23rd Report session 2012-13

Example of an information paragraph
 AUDIOVISUAL MEDIA SERVICES REGULATIONS
(SI 2009/2979)
4. This instrument ... extends the coverage of the existing
Television without Frontiers Directive to other media, for
example satellite, up-link or the internet, and on-demand
programmes such as iPlayer... The AVMS Directive also
allows Member States to decide whether to permit product
placement in broadcasting: the Government …is
consulting further on whether on nor to permit product
placement more widely in television broadcasting.[web
link]

What happens next …
Questions eg:
The Lord Alton of Liverpool – To ask HMG what
measures the Department of Health intends to
take to address the comments of the [SLSC’s]
21st report about the quality control system for
drafting SIs in the Department; and how they
propose to address the Committee’s
observation that the drafting errors might
have been identified at an earlier stage if the
Department had put the proposal out for
public consultation. (HL 4757)

Debates on affirmative
instruments
 in the Lords
Generally debated in Grand Committee
(taken in the Chamber if it is controversial
and/or there may be a vote). Lords
spokesman for the Government presents the
case.
 Motions to decline to approve or regret
some aspect possible.
Formal clearance follows in main Chamber
of the House (usually on the nod)

Debates on Negative instruments
Not normally debated but
 any individual Member may table a motion,
 almost always debated (Chamber or Grand
Committee).
 Can seek to annul, regret or take note
 After debate motion withdrawn or pressed to a vote
– successful motion to annul stops legislation from
date of vote (aka “fatal motion”)
 Other motions show view of the House and strength
of that view.

Take note
Lord Kirkwood of Kirkhope: That this House
takes note of the Flexible New Deal
(Miscellaneous Provisions) Order 2009 (SI
2009/1562). 12th report from the Merits Committee
– ... This is not an attack or an attempt to
annul the order; I am absolutely content
with its provisions. However, there are
some issues that it would be to the benefit
of the House to have raised before the
order passes into effect and leaves the
parliamentary process entirely....

In the Business Bulletin
Secondary
Legislation
Scrutiny
Committee
To be
considered
Waiting for consideration by the Joint Committee on Statutory
Instruments
Draft Social Security (Electronic Communications) Order 2013
Referred to a Grand Committee and Waiting for Affirmative Resolution
Draft Civil Legal Aid (Costs) Regulations 2013 29 March
Export Control (Amendment) (No. 2) Order 2013 24th Report 29 March
Waiting for Affirmative Resolution
Draft Media Ownership (Radio and Cross-media) Order 2013
Draft Employment and Support Allowance (Work-Related Activity)
Regulations 2013
24th Report

Explanatory Memoranda
 standard format, no more than 4
pages
 Plain English; aimed at non-expert
 Self contained – explains context
 Includes costs, benefits
consultation results,
ECHR, legal and policy
 EMs published on website alongside the
SI

EXPLANATORY MEMORANDUM TO THE [TITLE OF INSTRUMENT]
[Year] No. [XXXX]
1. This explanatory memorandum has been
prepared by [Name of department] and
is laid before [Parliament or the House
of Commons] by Command of Her
Majesty.
2. Purpose of the instrument – 3
sentences
3. Matters of special interest to the
Joint Committee on Statutory
Instruments
4. Legislative Context
5. Territorial Extent and Application
6. European Convention on Human
Rights
7. Policy background
• What is being done and why
• Consolidation
8. Consultation outcome
9. Guidance
10. Impact
 10.1 The impact on business, charities or
voluntary bodies is ...
 10.2 The impact on the public sector is ...
 10.3 An Impact Assessment is published
here or An Impact Assessment has not
been prepared for this instrument
because ...
11. Regulating small business
12. Monitoring & review
13. Contact

EM because the effect of an SI is not always
obvious ...
2(b) for Rule 2 and Rule 3 substitute
If the amount of contributions paid in respect of contracted-out
employments exceeds the amount found by the
following formula, the amount to be returned is the
excess.
53 x [((UAP-PT) x 9.4%) + ((UEL –UAP)
x11%)]
Social Security (Contributions) (Amendment No. 3) Regulations 2010

2. For the purposes of section 6(3)
of the Child Poverty Act 2010 the
the target percentage is 7%.

EM2. Purpose of the Instrument
3 sentences Plain English
 This Order makes supplementary and transitional provision
in respect of new provisions regarding police authority
membership which are being commenced under the Police
and Justice Act 2006 (“the 2006 Act”). The new regime will
come into operation, in the case of police authorities
established under section 3 of the Police Act 1996, on 1
April 2008 and, in the case of the Metropolitan Police
Authority, on 3 July 2008. This Order ensures that, until that
new scheme comes into operation, existing lay justice
members of police authorities in England and Wales whose
appointments would otherwise expire on or after 15 January
2007 shall have their appointments extended until 31 March
2008 or, in the case of the Metropolitan Police Authority, 2
July 2008.
 This Order makes transitional provisions to extend existing
lay justice appointments to police authorities until the new
scheme under the Police and Justice Act 2006 takes effect
in 2008.

EM4: Legislative Context
 Why is the SI being made
– Set it in context eg one of a group, implements an
Act or Directive, new case law
– If specific undertakings were given in debate/
question/Committee give Hansard references
– Produce a single EM for a group of linked SIs to
prevent unnecessary duplication of common
background and ensure reader is aware of links
 Do not repeat the powers information from the
regulations or EN

EM7: Policy Background
What this SI does and why
 Give policy context
 Explain how this instrument fulfils the policy
objectives of the parent Act/Directive
 Evidence to support the chosen policy solution
(including why legislation is necessary)
 Don’t use jargon or assume knowledge - Snellen Scale,
foreign aircraft

EM 8. Consultation outcome
 Include a brief explanation of who was
consulted
 If consultation was less than 12 weeks explain
why
 Give % analysis of responses and how
Department has accommodated suggestions
 Full analysis should be available at time
SI is laid – include DIRECT weblink – in
addition to paragraph in EM, not instead of.

EM9: Guidance
 What guidance to enforcers or publicity to
public is being provided?
Example: National Health Service (Pension Scheme and
Compensation for Premature Retirement) Amendment
Regulations SI 2006/2919 EM para 7.10
 Guidance on the new redundancy package will be
incorporated into the NHS Terms and Conditions
Handbook issued by the NHS Employers Organisation
and available to all NHS management and staff. NHS
Employers have also provided a series of national
seminars for NHS Managers. In addition the Pensions
Division of the NHS Business Services Authority will
provide guidance through their member booklets and
website member suite.
 Where material to the understanding of the
legislation send copies with SI eg PACE
Codes

EM 10. Impact Assessment
Full Impact Assessment required for:
 Any proposal that imposes or reduces costs on
businesses or charities
 And for public sector, unless costs marginal
 If high levels of political or media interest, a full IA
is advised – or proportionate summary of
costs/benefits
Summary in EM & Final IA attached, signed by
a Minister or
Explanation of why IA not required

EM13: Contact
 Name, e-mail and phone number should
be given in all cases
– Only exemption is where there are security
considerations eg animal rights
 Contact arrangements needed
for 40 days after SI laid

http://www.parliament.uk/seclegscrutiny

Parliament Explained: Introduction to Parliament
29 January 2015, Grimond Room
parliamentaryoutreach@parliament.uk
020 7219 1650
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House of lords dl 04122014

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