LORDS

History of the Secondary Legislation Scrutiny Committee

The Merits of Statutory Instruments Committee was set up in December 2003.  In the 2012–13 Session it was renamed the Secondary Legislation Scrutiny Committee to reflect scrutiny of Orders laid under the Public Bodies Act 2011.

From 2003 until the end of the 2014–15 session of Parliament, the Committee scrutinised a grand total of 11,603 SIs; it brought 718 of these SIs to the special attention of the House. 

The Government agreed in 2004 to the Committee's request that Explanatory Memoranda should be laid alongside all SIs, including those subject to negative resolution.  In the first end-of-session report, the Committee stressed the need for EMs to be both accurate and complete in the information provided, including about consultation responses. 

From 2005 onwards, the Committee maintained its scrutiny of SIs, but widened its activity through the conduct of several inquiries.

Inquiries

The first, between September 2005 and March 2006, looked at “The Management of Secondary Legislation”, and made recommendations for securing improvements to the flow of secondary legislation.  In the 2007–08 Session, the Committee took further evidence from Government Ministers.  It stressed that Departments still needed to do more to improve their handing of SIs, and it pointed to recent debates which had shown the House's objection to poorly prepared secondary legislation, notably its rejection of the draft Gambling (Geographical Distribution of Casino Premises Licences) Order 2007.

Between September 2008 and March 2009, the Committee carried out an inquiry into the cumulative impact of regulation on schools.  The Committee recommended that DCSF should adopt 1 September as the commencement date for all schools-related SIs; and that schools should be given at least one full term’s lead-in time between the notification of a new requirement in a statutory instrument and the commencement of that requirement.

Between June and November 2009, the Committee conducted a study to assess the extent to which Government Departments checked whether secondary legislation was actually working as originally intended.  The Committee set out a number of recommendations for Government to improve and extend post-implementation review of SIs.

An extension of the Committee's role came when it was appointed to scrutinise Orders laid under the Public Bodies Act 2011.  In total, by April 2015, the Committee had considered 30 such Orders, and published three reports reviewing the laying of PBOs under the 2011 Act.

Inquiries into Government consultation principles, and consultation practice

In autumn 2012, the Committee carried out an inquiry into the Government’s new consultation principles, which had been adopted in July 2012. The Committee felt that the changes made had been detrimental to effective consultation.  It published the outcome of the Government's own review of its principles in November 2013.  The Committee still saw the Government's approach as favouring administrative convenience over the interests of potential respondents.

In the autumn of 2014, the Committee held a follow-up inquiry, looking at the practical application of these revised principles.  The inquiry report was published in January 2015.  The Committee criticised the Government's failure to carry out systematic monitoring of consultation processes, and called for a stronger role for the Cabinet Office to do so.

Scrutiny of individual statutory instruments

While the Committee has tackled several generic concerns, most of its effort is devoted to scrutiny of individual SIs.  Two SIs considered in recent years offer examples. 

In February 2013, the Department of Health (DH) laid the National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 (SI 2013/357), which governed the use of tendering in the procurement of most NHS services.  The Committee received 2,000 submissions from external groups.  The Committee reported the SI on the ground that it might imperfectly achieve its policy objective.

In March 2013, DH laid the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (SI 2013/500) to revoke and replace SI 2013/357.  The Committee brought this SI to the special attention of the House on the same ground, criticising the speed with which DH was taking forward the revised SI, which had left insufficient time for interested parties to understand the new requirements before their implementation.

In December 2014, DH laid the draft Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015, to enable mitochondrial donation techniques to be used, under licence, as part of in-vitro fertilisation (IVF) treatment.  The Committee drew the Regulations to the special attention of the House on the ground of public policy interest, setting out the concerns that had been put to it by the authors of some 18 submissions of written evidence.

A fuller version of the history of the Secondary Legislation Scrutiny Committee is available here (PDF PDF 254 KB).

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Public Bodies Orders

The Public Bodies Act 2011 gives Ministers the power to draft an Order to abolish, merge or modify the constitutional or funding arrangements of the public bodies listed in Schedules 1 to 5 of the Act.

The Committee scrutinised 35 Public Bodies Orders to consider whether they met the tests set out in section 8 of the Public Bodies Act 2011. Find out more about Public Bodies Orders here.