LORDS

The Management of Secondary Legislation

The Committee's Report on the Management of Secondary Legislation, was published on 27 March 2006, two years after the Committee had started scrutinising statutory instruments. Based on that initial experience, the report  illustrates good and bad practice from across the Whitehall Departments in how regulations are explained, consulted on and  costed.  We followed this up two years later to see what progress they had made.

After it had been looking at statutory instruments for 2 years, the Committee had formed impressions of how the various Whitehall Departments were going about producing regulations. We also took oral evidence from three Departments – the Department for Trade and Industry (DTI), the Department for Environment, Food  and Rural Affairs (DEFRA) and the Home Office.  The report, The Management of Secondary Legislation, gives examples of good and bad practice from across the Whitehall and made 20 recommendations on how the  quality and planning of regulations might be improved.

The Government response left  much to the initiative of individual departments. Two years later the Committee returned to the issue to see whether  Departments had indeed made progress.

The Report “The Management of Secondary Legislation: follow-up” was published on 12 March 2008. As well as the Committee’s own observations of over 2,000 more statutory instruments it included oral evidence from another two  Departments on how they approach secondary legislation: the Department for Work and Pensions (DWP) and the Department for Children, Schools and Families (DCSF). Broadly it  made the following recommendations:

  • Departments need to take a more active approach to ensure that senior policy officials systematically check the material they intend to lay before Parliament for efficacy, accuracy and completeness;
  • Non-compliance with the 12-week consultation requirement should be exceptional and always explained fully. The analysis of a consultation exercise is not an afterthought but should drive policy. The full analysis should always be available when the SI is laid, as should any other supporting documents. EMs should better and more accurately summarise the results of consultation;
  • Departments should routinely produce and publish plans for the secondary legislation to be made in consequence of a new Act: this could lead to  less and better focused legislation.
  • More resources should be devoted to consolidation and simplification, at the very least to the publication of on-line consolidations; and
  • The Minister for Better Regulation could do more to publicise and encourage the setting of (measurable) policy objectives and success criteria in impact assessments, and the regular adoption of post-implementation review.