In the Media

A new politics: Restrict the use of secondary legislation

PUBLISHED May 22, 2009

Any reform of parliament should urgently include means to restrict the use of secondary legislation ? usually statutory instruments (SIs) ? and provide better ways of scrutinising what are essentially ministerial edicts.

Most bills contain clauses that allow for secondary legislation to be drafted in certain vaguely specified areas at a later stage ? a blank cheque, if you like. Eventually these refined measures are presented to parliament and made law with almost no debate. Research shows that in the last two decades statutory instruments have doubled, with a noticeable spike at the beginning of the Blair era. In 2005, there were an incredible 14,580 pages of legislation, of which nearly 12,000 were statutory instruments.

Much of this amounts to harmless regulation but increasingly we are seeing criminal offences created by unscrutinised measures that ride into the law on the back of primary legislation. The general point about statutory instruments is that they greatly increase the power of the executive and allow ministers to avoid unfavourable publicity and critical examination.

The Norton commission in 2000 said that scrutiny of statutory instruments was "woefully inadequate" and that "major changes were needed to existing practice". This has not happened.

A statutory instrument should be published in draft form giving MPs the chance to look at the measure on its merits and describe in simple terms what it means to the public. A sifting committee should apply a systematic scrutiny and decide whether the measure should be debated. At present, it is left to researchers and individual MPs to ferret out any problems.

To restore power and respect to MPs, statutory instruments should be amendable by either house and both houses should have the power to refer back to the ministry concerned with precise suggestions.

Once the measure becomes law there should be opportunities for post legislative scrutiny to see how it is working in practice.