Proposal for consideration of delegated legislation during pandemic restrictions

Written evidence from Paul Evans (CVR 01)

Proposal for consideration of delegated legislation during pandemic restrictions

Paper by Paul Evans, former Clerk of Committees, House of Commons

Annexed to this memorandum is a proposed temporary standing order establishing a “Grand Committee on Delegated Legislation”. Its purpose is to provide for the more efficient use of time, Member resources, ministerial and official resources and House staff resources during the period where these are under increased strain due to the Covid-19 pandemic and the operation of control measures to mitigate its impact.
In an average year there are upwards of 200 statutory instruments subject to the affirmative procedure which are required to be actively considered and approved by the House (although there are wide fluctuations in the flow across time). At present, under Standing Order No. 118, once an instrument has been laid and a Minister has tabled a motion to approve it, each affirmative procedure stands automatically referred to a Delegated Legislation Committee (DLC).
If there is a desire to debate an instrument on the floor of the House, it can be de-referred from the default of debate in a DLC simply by a Minister giving notice of the intention to take it on the floor. On the floor, any instrument may be debated for up to ninety minutes, after which the question to approve it must be put for decision. Such debates can take place after the normal time set for the House to finish its business without the need for a special order to enable this – they are in the terms of the standing orders “exempted business”.
Instruments which remain in the default status of referral to a DLC are allocated to a particular committee, normally of around 17 members, and must be considered by that committee on a neutral take-note motion. Each committee can last up to ninety minutes. Once the committee has reported to the House that an instrument has been considered the motion to approve it can be put on the floor of the House, where it must be decided without debate (though there can be a division – which would normally be deferred).
The Institute for Government (IfG) published a very useful analysis of the time spent in these committees in its Parliamentary Monitor 2018. Their summary was as follows:

… committees typically spend considerably less time than [90 minutes] scrutinising secondary legislation. In the year since the State Opening of Parliament [in 2017], the average duration of a DLC was just 23 minutes. Almost a quarter of committees (33) met for less than 10 minutes. On average, each piece of secondary legislation was considered for just 18 minutes. This is not unusual: research by the Hansard Society found that the average duration of a DLC in the 2015/16 parliamentary session was 26 minutes … MPs have reported that serving on a DLC is considered to be a punishment …

In the preliminary version of their Parliamentary Monitor 2019, the IfG note:

The government has introduced – or laid – slightly more SIs during the 2017–19 session than either of the two previous sessions, with 5.8 laid per sitting day, compared to only 4.8 during 2015–16 and 5.1 during 2016–17 … 28.7% of those laid this session have been explicitly Brexit-related … Our updated analysis (covering SIs laid from the start of the 2017–19 session until 13 June 2019) shows that the average duration of DLCs increased slightly to nearly 26 minutes – still far short of the 90 minutes available for most debates. One notably short DLC lasted just one minute …

Although in practice the sittings of DLCs are generally much shorter than the ninety minutes provided for, they require a separate committee room to be set aside and set up for two hours, reporting and broadcasting staff to be rostered to attend for the full potential duration, members to be appointed by the Committee of Selection, a chair to be appointed by the Speaker, a clerk allocated and the necessary paperwork and notifications given and the officials and a Minister to set aside the time.
The proposal is to largely replace the welter of delegated legislation committees with a single “Grand Committee on Delegated legislation”. The title “Grand Committee”, which might seem a little high falutin, is in line with its use elsewhere in standing orders to indicate a committee which is comprised of a class of Members (all those sitting for seats in Northern Ireland, Scotland or Wales for example) rather than individually named and appointed members. In this case the proposal is that all Members would automatically be members of the Grand Committee, although the quorum would be only three.
The intention is that this committee would be used as a very flexible vehicle to dispose of the majority of non-contentious statutory instruments in a rapid-fire procedure which would allow for some questioning and challenging of Ministers but would not require the full panoply of a separate ad hoc committee for each instrument and the consumption of the resources that potentially entails. It is designed to try and balance the need for at least the opportunity for proper scrutiny and challenge with the best use of the scarce resources of Member and Ministerial (and official and House staff) time.
The system of delegated legislation committees would be available for a specific debate on a specific instrument or group of instruments where it appeared to a Minister that the requirements of proper scrutiny would be best served by that, but they would cease to be the default forum for debate. The power to reserve an instrument for debate on the floor would remain unaltered.
The draft standing order gives the Chairman of Ways and Means the power to determine when the Grand Committee would meet and how long a sitting would last. Ideally, one could imagine it meeting once (or twice) a week for up to three hours, preferably at a time when few other committees were meeting (to minimise pressure on resources such as rooms and staff). It would be relatively simple to broadcast and report, and would probably lend itself quite well to using “virtual” access if there were a desire to experiment with that.
As many instruments as appropriate could be listed on the Committee’s Order Paper for consideration at any sitting, arranged in an order agreed between the Chairman of Ways and Means and Ministers. This would allow them to be grouped in, for example, departmental order, and possibly for ones which are known to raise small but important questions to be taken at the end of each group with those likely to be nodded through taken first.
The draft standing order proposes that each instrument could be debated for up to thirty minutes, but the figures collated by the IfG indicate that most would be considered for a much shorter time – quite probably without any debate at all in some cases.
As with delegated legislation committees, after an instrument had been reported from the Grand Committee it could be approved on the floor of the House without further debate.
The draft standing order draws quite heavily on the procedure for sittings in Westminster Hall, as set out in Standing Order No. 10. It is proposed that there could be no divisions in the Grand Committee, but there are two particular protections for the minority. The first is that any one Member present can object, before debate on a particular instrument starts. The debate must then be deferred. This is intended to provide for a situation in which Members (including party managers) may wish to negotiate with Ministers to take a particular instrument on the floor or in a DLC rather in the Grand Committee and for some reason did not have the opportunity to do so in advance, or where they simply feel that more time to study the instrument is required. The second is where any Member present feels at the end of a short debate that further debate is necessary. If the Chair’s opinion that the motion to report the instrument has been agreed is contradicted, the instrument would be automatically referred to a DLC.
A broader protection incorporated is that no instrument can be considered in the Grand Committee fewer than five working days after it has been laid. This is intended to ensure interested parties outside the House, as well as within, have time to study the instrument and raise any issues they may have either with the government or with other Members.
Taking the IfG’s figures for June 2017 to June 2018, if this system had been in operation it is plausible that around 140 of the instruments debated in a DLC would have easily been dealt with in the Grand Committee, leaving around 35 to be considered in a full DLC. In other words, one could hope for a reduction of about 80% in the number of DLCs which would be required to be set up, populated and staffed, to meet, debate and be reported. I suspect that in fact this may slightly understate the efficiency gains that could be hoped for.
The standing order is deliberately designed to be highly flexible in its application to enable the House to experiment with the procedure to find the most effective way to make use of it. A large amount of discretion is given to the Chairman of Ways and Means to fine-tune the Grand Committee’s business and modus operandi. For example, I could envisage the government reasonably objecting that whatever the inefficiencies and time-wasting aspects of the present system are, it does give a degree of predictability about planning Ministers’ diaries and official preparations. But this might be ameliorated by the Chairman of Ways and Means deciding, for example, to allocate timed slots (as in Westminster Hall) to the consideration of groups of instruments: say, all SIs from the Department of Transport at 11 am followed by all those from EFRA at 11.15. etc. It might even be feasible to have remote involvement of a Minister.
The standing order as drafted would allow the Grand Committee also to be used (if the House so agreed) for consideration of negative procedure instruments to which an objection had been registered by Members in the form of a “prayer”. This is a bit of icing on the cake really – it would enable a short debate where the objectors did not want to dispute the central purpose of an SI but wanted a chance to raise some questions, seek clarification or point out some potential unintended consequences, etc.
There would undoubtedly be trade-offs that had to be made on both the House’s and the government’s side to make the system work. But I think it has the potential to deal with the bulk of uncontroversial delegated legislation very efficiently while enabling the separation of the wheat from the chaff so that the delegated legislation that Members of the House believe merits close scrutiny gets it.
The draft standing order is presented, for the convenience of the Procedure Committee, in a form which I believe would be possible to operationalise as it stands. Of course, if the Committee decided to proceed with the scheme it may wish to tweak some of the provisions after consultation and consideration, and would no doubt also wish to stress test the drafting.

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Annex A: Proposed temporary Standing Order

Grand Committee on Delegated Legislation (temporary provisions)

(1) There shall be a general committee, to be called the Grand Committee on Delegated Legislation, for the consideration of instruments (whether or not in draft) subject to affirmative resolution procedure which have been laid before the House; together with any instruments subject to negative resolution procedure which have been referred to the Committee by the House.

(2) Any Member may take part in the deliberations of the Grand Committee; and the quorum of the Committee shall be three, not including the chair.

(3) Where a Minister of the Crown has given notice of a motion that an instrument (whether or not in draft) on which proceedings may be taken in pursuance of an Act of Parliament (other than a draft legislative reform order) be approved, the instrument shall stand referred to the Grand Committee on Delegated Legislation, unless—

(a) notice has been given by a Minister of the Crown of a motion that the instrument shall not so stand referred, or

(b) the instrument is referred to the Scottish Grand Committee or to the Northern Ireland Grand Committee.

(4) The Grand Committee shall sit at times to be appointed by the Chairman of Ways and Means; and the Chairman of Ways and Means shall set the time at which each such sitting is to be adjourned without question put if the business before the Committee at that sitting has not previously been disposed of.

(5) The Committee shall consider each instrument which stands referred to it on the motion that the instrument be reported to the House; and any instrument which the Committee orders to be reported shall be reported to the House by the chair of the Committee.

(6) No instrument shall be set down for consideration by the Grand Committee earlier than five calendar days (not including a Saturday or Sunday) after it was laid before the House; the order of consideration of the instruments referred to the Committee at each of its sittings shall be determined by the Chairman of Ways and Means in consultation with Ministers of the Crown; and the chair shall put any question necessary to dispose of the proceedings on a motion to report an instrument, if not previously concluded, no later than half an hour after proceedings on that instrument commenced.

(7) If any motion is made in the House that an instrument be approved, in relation to any instrument reported to the House from the Grand Committee, the Speaker shall put forthwith that question, which may be decided at any hour, though opposed.

(8) If, before a motion to report an instrument is proposed at a sitting of the Grand Committee, any Member signifies their objection to further proceedings on that motion, any proceedings on that instrument shall stand over to another sitting of the Committee, unless notice has been given by a Minister of the Crown that that instrument no longer stand referred to the Grand Committee.

(9) If at a sitting of the Grand Committee the opinion of the Chair as to the decision on any question to report an instrument is challenged, that question shall not be decided, and the instrument shall stand referred to a delegated legislation committee.

(10) This order shall have effect until [31 July 2020]; and the question on any motion in the House to renew this order for a further period not exceeding six months shall be put by the Speaker no later than forty-five minutes after proceedings on the question commenced; and that question may be decided at any hour, though opposed.

(11) During any period in which this order has effect the provisions of Standing Order No. 118 (Delegated Legislation Committees) shall have effect as if

(a) paragraph (3) of that order read as follows:

“(3) Where a Minister of the Crown has given notice of a motion to the effect that an instrument (whether or not in draft) upon which proceedings may be taken in pursuance of an Act of Parliament (other than a draft legislative reform order) be approved, a motion may be made by a Minister of the Crown, that the instrument be referred to such a committee, and the question on any such motion shall be put forthwith by the Speaker and may be decided at any hour, though opposed.”;

and this order shall no longer apply to an instrument which stands so referred; and

(b) in paragraph (4) of that order, after the words “such a committee” the words “or the Grand Committee on Delegated Legislation” were inserted.

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Annex B: Detailed explanation of standing order provisions

Paragraph (1) of the standing order establishes the Grand Committee on Delegated Legislation and sets out its remit.
Paragraph (2) permits any Member of the House to attend and participate in a meeting of the Grand Committee and sets its quorum as three, not including the chair.
Paragraph (3) replaces the default of reference of affirmative statutory instruments to a delegated legislation committee with a default of reference to the Grand Committee, while preserving the ability of Ministers to “de-refer” any instrument for debate on the floor of the House.
Paragraph (4), together with paragraph (6), is intended to provide the maximum flexibility in the agenda of the Grand Committee, giving power to the Chairman of Ways and Means (CWM) to fix the date, start time, organisation and duration of each of its meetings.
Paragraph (5) provides that each instrument is debated on the neutral motion. Paragraph (6) provides for a debate on an instrument to last a maximum of thirty minutes. Most debates would be shorter than this.
Paragraph (6) also prevents any instrument being considered by the Grand Committee less than a working week after it has been published, to enable a reasonable time for interested parties inside and outside the House to study it and determine whether it raises any questions requiring further consideration.
Paragraph (6) also gives the CWM the power to determine the agenda of the Grand Committee, that is which instruments will be considered at each meeting and in what order. This power is exercised in consultation with Ministers, and the expectation is that this would allow, for example, for groups of instruments emanating from one particular department or relating to one particular area to be taken together, with perhaps three or four departments (or more) having their instruments taken at one meeting in succession. It also provides for a degree of procedural triage to be exercised by the CWM to try to ensure that uncontroversial instruments are given priority for consideration in the Grand Committee and ones likely to be controversial may be deferred for consideration of whether a different forum for debate would be more appropriate.
Paragraph (7) provides that after an instrument has been reported from the Grand Committee, the motion to approve it on the floor of the House will be taken without debate, can be dealt with after the time for the main business of the day and can be subject to a deferred division if objected to when put to the House. This is the same procedure as currently applied to instruments reported from a delegated legislation committee.
Paragraph (8) is designed as a protection for any Member who feels that an instrument on the agenda of the Grand Committee requires further thought. Any single Member can object at the very start of a debate on a motion in the Grand Committee to the continuation of the debate, and the instrument is automatically deferred to a later date. The aim is to preserve the generally uncontroversial nature of debate in the Grand Committee.
Paragraph (9) is a long stop protection for Members where, during the course of the Grand Committee’s deliberations, it might emerge that there were serious concerns about an instrument which meant that it required further debate for up to ninety minutes in a delegated legislation committee (or on the floor of the House if de-referred by a Minister). It ensures that there can be no divisions in the Grand Committee.
Paragraph (10) establishes that the standing order is temporary but allows for its renewal for up to a further six months, after a short debate if necessary.
Paragraph (11) temporarily amends Standing Order No. 118 to stop the default of instruments being referred to delegated legislation committees but preserves the ability of Ministers to refer a specific instrument to such a committee if it is felt to be a more appropriate vehicle for debate than the Grand Committee. It also temporarily amends the same standing order to allow the referral of instruments subject to negative resolution procedure to the Grand Committee as well as to a delegated legislation committee.

Financial implications

In the short term the temporary standing order should reduce the costs to the House by replacing a large number of sittings (by up to 80%) of separate delegated legislation committees with much less frequent sittings of the Grand Committee. It should also have potential to reduce the costs of servicing these procedures for government departments.