The Government has restricted parliamentary scrutiny, failed to provide information on the impact of legislation and given poor explanatory background on its policy decisions in a number of instances, according to an end of session report from the House of Lords Secondary Legislation Scrutiny Committee.
In a report, What next? The Growing Imbalance between Parliament and the Executive, the Committee said it was concerned about the Government using practices in the 2021–22 parliamentary session that curtailed Parliament's ability to provide effective scrutiny as part of the legislative process.
The Committee said it was especially conscious of the reduced scrutiny in the previous session in the context of the Brexit Freedoms Bill, which, according to the Government, will "accompany a major cross-government drive to reform, repeal and replace outdated EU law".
"Given the volume of retained EU law, it is important that Parliament's role in scrutinising legislation - especially as regards secondary legislation - should not be in any way weakened by the Government's ambitions for reform in this area," it noted.
The Committee highlighted five key themes and areas of concern in its report.
First, it found that, as the need to take emergency action in the wake of the Covid-19 pandemic receded, the Committee continued to see Statutory Instruments (SIs) that were brought into effect immediately or almost immediately without justification and with a failure to consider concerns raised by the Lords.
Convention requires departments to allow at least 21 days between a negative instrument being laid before Parliament and its coming into force, although concessions can be made in extraordinary circumstances.
The report recommended that, as the pandemic restrictions have been lifted, departments should only breach the 21-day rule in the "most exceptional of circumstances and, on each occasion, will offer a clear explanation of, and justification for, their action".
A second theme identified by the Committee in the last parliamentary session was the failure to provide information on the impact of legislation.
"In our view, clear and comprehensive explanatory material including accurate information on the costs and benefits of the change, should be laid at the same time as the instrument, so that it is available to all interested parties both inside and outside Parliament," the Committee said.
It later added that it was concerned that a failure to provide Impact Assessments (IAs) when they were required was a "frequent occurrence" and affected several departments during the session. Each instance undermined the ability of Parliament to scrutinise the legislation effectively and also had the potential to cast doubt over the robustness of the policy development process, the report claimed.
The Committee called on the Government to ensure that the timely production of IAs is made a priority and part of the oversight exercised by departmental Senior Responsible Owners and Lead Ministers for secondary legislation.
Thirdly, the Committee said it found a number of examples in which the Government offered poor quality explanations of legislation. It recommended that departments ensure that any explanatory memorandum (EM) accompanying an instrument sets out clearly how feedback received during consultation had been taken into account and, in particular, how possible objections or concerns had been addressed.
The Committee highlighted the Government's handling of unitarisation in Cumbria as an example of poor quality legislative explanation.
It noted that the Department for Levelling Up, Housing and Communities (DLUHC) said that unitarisation should always be "locally led" and "command a good deal of local support". But the EM to the regulations introducing unitarisation in Cumbria "made it clear that the only proposal to have received support from a majority of local respondents during consultation was not implemented," according to the Committee.
DLUHC explained that more than one proposal for unitarisation had enjoyed a degree of local support and that a number of criteria had to be met. "We were not clear, however, on what basis the chosen option for unitarisation was permitted to go ahead when the feedback received suggested that the chosen option did not enjoy widespread support from local residents," the report added.
The Committee also complained about a number of situations in which information about relevant court cases had not been included in a statutory instrument's EM.
The report noted that: "For example, the SI allowing the continued use of Napier Barracks in Kent for asylum applicants, neglected to mention that a recent High Court judgment against the Home Office had found that the standards and operational systems at Napier Barracks had been unlawful."
Where secondary legislation is intended to address issues arising from a court judgment, this should be explained in the EM, the Committee said.
In addition, the report recommended that where guidance is important to understanding how an instrument will operate in practice, it should be published when the instrument is laid before Parliament.
It added: "[Guidance] should, of course, align fully with the legislation it supports. Key definitions or criteria that will be used in making decisions on how the legislation will operate in practice should be in the legislation itself. These matters are fundamental to effective parliamentary scrutiny, and we expect, therefore, that departmental Senior Responsible Owners will take responsibility for ensuring they are dealt with appropriately."