Scrutinising Delegated Legislation: What Can Westminster Learn From Other Parliaments?

There is wide concern about the increasing use of delegated legislation in the UK. Delegated legislation is normally made by ministers, rather than parliament. Historically, it has been used to fill in the details of broader policy frameworks set out in primary legislation. But recent years have seen a growing trend of ministers using delegated legislation to implement major policy decisions. This was highlighted as an issue during the Brexit process and Covid-19 pandemic. It has continued under the Sunak government, as shown by the recent bills on industrial action and retained EU law both containing significant delegated powers.

This trend has led to renewed attention being paid to the UK parliament’s system for scrutinising delegated legislation (which mostly takes the form of ‘statutory instruments’). By its nature, this legislation receives less extensive scrutiny than primary legislation. But especially when these statutory instruments (SIs) contain significant policy content, it is important that MPs and peers have sufficient opportunities and means to scrutinise them. That scrutiny may confer greater legitimacy and further government accountability to parliament. It may also highlight technical and policy flaws and ensure that a range of voices are heard in the policy-making process.

However, there is widespread agreement that the current UK system is not up to this task. The system’s flaws have been outlined extensively elsewhere, particularly by the Hansard Society. In brief: there is very little sustained debate of SIs, especially in the Commons, and particularly when it comes to their substantive policy merits rather than other legal or technical criteria. The role of undertaking legal or technical scrutiny is performed by the Joint Committee on Statutory Instruments (JCSI), whereas policy scrutiny is undertaken by the Secondary Legislation Scrutiny Committee (SLSC). But in spite of the SLSC’s good work, there have been calls for more scrutiny of the substance of policy. Moreover, despite being scrutinised by committees, SIs are almost never voted down by parliament. The House of Lords debates SIs regularly, but typically exercises self-restraint and does not seek to defeat them. In the Commons, ministers’ control of the agenda can often allow them to simply block or delay attempts to object to SIs.

However, the UK is not the only country to use delegated legislation or to face the challenge of ensuring that it receives adequate parliamentary scrutiny. Our research thus sought to provide context by describing how other countries organise their equivalent systems. We focused on the national parliaments of six countries – Australia, Canada, India, Ireland, New Zealand, and South Africa – and used various sources to summarise their formal procedures for scrutinising delegated legislation.

This new data allowed us to contrast the UK’s system with those found in these six other cases, and to evaluate its comparative strengths and weaknesses. We concentrated on how far these parliaments allowed delegated legislation to be meaningfully debated and to be put to a vote.

Comparative strengths of the UK system

Our research suggests that one comparative strength of the UK’s system is its well-established arena for detailed technical and legal scrutiny: the Joint Committee on Statutory Instruments. This committee of peers and MPs reviews the technical quality of a large number of SIs, and seems to be generally viewed as a valuable part of the UK system.

This places the UK alongside the better-equipped legislatures studied for this project. Four of our cases – Australia, Canada, New Zealand, and India – have committees with a similar remit to the JCSI. These use varied criteria but appear to fulfil the same core role: scrutinising the technical quality of delegated legislation (but not its policy merits). This compares favourably to two other cases – Ireland and South Africa – which lack a permanent committee focused specifically on undertaking technical scrutiny of general delegated legislation.

Comparative weaknesses of the UK system

Nonetheless, we also found three comparative weaknesses in the UK’s system. The first two are weaknesses shared with the other cases; the third is one where the UK might learn lessons from elsewhere.

The first common weakness is the absence of a dedicated arena for merits-based scrutiny of delegated legislation. An arena of this kind was notably absent from all six of the legislatures we studied. Though they all have at least some mechanism for delegated legislation to be debated on the parliamentary floor, such debates are usually short, and often entirely non-existent.

In principle, the UK does have a venue for debating the policy merits of delegated legislation: the Commons’ Delegated Legislation Committees. However, these are one of the most extensively criticised parts of the UK’s system. Their debates are usually brief and superficial, and have been seen inside and outside Westminster as a waste of time, rather than a vehicle for serious scrutiny.

The second shared weakness is these parliaments’ inability to amend delegated legislation. Allowing MPs or peers to amend ministers’ proposals might have some downsides, but would be one way for MPs to raise objections short of rejecting those proposals entirely. However, the UK parliament seems to be similar to four of our other cases in usually having no power to amend delegated legislation. There is some formal scope for amendment in New Zealand and India, but in practice this power seems to be curtailed.

Finally, our research identified one area where the UK might learn lessons from other parliaments. A central issue with the UK system is that it is difficult for MPs to insist on debating an SI, especially if it is only subject to a ‘negative’ procedure so does not need active assent from parliament. Ministers are generally able to use their control of the agenda to block the ‘prayer’ motions by which MPs raise objections to SIs. This can prevent MPs debating proposals and exposing them to scrutiny.

However, several of the cases we studied have procedural mechanisms which might reduce ministers’ ability to simply block or delay attempts to oppose SIs. For example, Australia, Canada, and New Zealand all have procedures for so-called ‘motions of disallowance’ (or their equivalent) to take effect automatically if not addressed within a certain time period. This route could potentially be abused for obstructive purposes, if open to all MPs without restriction. But that risk might be mitigated by limiting such a power to only certain members, such as those on the specialised committee scrutinising delegated legislation. This kind of approach is taken in Canada and New Zealand. Our evidence thus suggests that UK policy-makers might take inspiration from other parliaments when considering how to ensure MPs can secure debates on controversial statutory instruments.

Summary

The UK’s system for parliamentary scrutiny has both strengths and weaknesses when compared to these six other parliaments. While the UK’s system has clear flaws, these are not unique. Two of these cases – Ireland and South Africa – appear to have less extensive parliamentary mechanisms for scrutinising delegated legislation. The others – Australia, Canada, India, and New Zealand – share two key features of the UK’s system: developed mechanisms for technical scrutiny, but limited tools for effective merits-based scrutiny.

Our work also highlights an area where the UK might learn from other parliaments: ensuring MPs can air their concerns about, and object to, specific pieces of delegated legislation. Other countries seem to have developed specific procedural answers to this challenge, which the UK might consider studying and adapting.

Crucially though, none of the countries that we studied offers a clear template for redesigning the UK’s system to ensure more effective parliamentary scrutiny. It seems that improving scrutiny of delegated legislation at Westminster will require both learning from elsewhere and procedural innovation.

This post was originally published on the Constitution Unit blog. It is a summary of a more detailed article, Parliamentary Scrutiny of Delegated Legislation: Lessons from Comparative Experience, which was published by The Political Quarterly in July 2023.