12.5.1 Scrutiny of delegated legislation

The practice of delegating lawmaking powers to the executive is neces-

sary, given the complexity of modern government and the pressure

upon parliamentary time. Most delegated legislation is detailed and

highly technical. It would be impracticable to subject all delegated

legislation to detailed democratic scrutiny so that the law is necessarily

a compromise. Thus delegated legislation is subject to a limited degree

of parliamentary control by being laid before one or both Houses

for approval. Unlike a bill, Parliament cannot usually amend dele-

gated legislation.

Originally the laying process was haphazard, but as a result of

public concern about ‘bureaucratic tyranny’ (see Report of Committee

on Ministers’ Powers, 1932, Cmnd. 4060) limited reforms were made

by the Statutory Instruments Act 1946. Most delegated legislation

takes the form of a statutory instrument which subjects it to the Act.

A statutory instrument made after the 1946 Act came into force is

defined as such if it is made by Order in Council or if the parent Act

expressly provides. Thus there is no legal obligation on governments to

comply with the controls in the 1946 Act. Moreover a statutory instru-

ment has to be laid before the House only if its parent Act so requires.

The 1946 Act also requires that statutory instruments must be pub-

lished ‘as soon as may be’ unless there is a special excuse for not doing

so (s. 3). Failure to publish may not make the instrument invalid but

provides a statutory defence to prosecution, provided that the accused

was unaware of the instrument and that no reasonable steps had been

taken to publicise it (s. 3 (2); see R. v. Sheer Metalcraft Ltd (1954)).

282 General Principles of Constitutional and Administrative Law

The laying procedures typically require only that the statutory

instrument be ‘laid on the table’ of the House in draft or in final form

for 40 days subject to annulment by a vote of the House – the ‘negative’

procedure. The fate of the instrument therefore depends upon the

chance of a member seeing the document and securing a debate. Some

instruments are required to be laid for information only, Parliament

having no power to annul them. A small number of important statutory

instruments are made subject to an ‘affirmative’ procedure under which

there must be a positive vote in order to bring them into effect.

The Parliament Acts do not apply to delegated legislation so that

the House of Lords has the power to veto a statutory instrument.

It has done so only once in the last 30 years when it vetoed a measure

that would deny free mailing for candidates in the election for the

Mayor of Greater London (Hansard (HL) 20 Feb. 2000 Col. 136). The

Wakeham Committee and the government have proposed that this

power be removed in favour of a delaying power only (Wakeham, 2000).

The Joint Committee on Statutory Instruments is responsible for

scrutinising statutory instruments laid before Parliament. The scrutiny

committee is not concerned with the political merits of the instrument

but is required to draw the attention of Parliament to specified

constitutional matters. These are as follows:

(i) Does the instrument impose taxation or other forms of charge?

(ii) Does it exclude control by the courts?

(iii) Is it retrospective without the express authority of the parent

Act?

(iv) Has there been unjustifiable delay in laying or publishing it?

(v) Is there doubt as to its legal validity or does it appear to make

some unusual or unexpected use of the powers under which it

was made?

(vi) For any special reason does its form or purport call for

elucidation?

(vii) Does its drafting appear to be defective?

(viii) Any other ground other than those relating to policy or merits.

12.5.2 Select committees

A select committee is appointed for the whole Parliament, by con-

vention mainly from backbenchers. Its task is to investigate and report

to the House. It can investigate matters referred to it, or on its own

initiative. In an attempt to strengthen Parliament’s control over the

executive, departmental select committees were introduced in 1979

283

Parliamentary Procedure

(SO 130). Each committee is responsible for investigating the activities

of a government department and reporting to the House. There is how-

ever no select committee for the Lord Chancellor’s department nor for

the prime minister’s office. There are also functional select committees

dealing with contemporary issues. These committees include ‘moder-

nisation’, broadcasting, deregulation and regulatory reforms, environ-

mental audit, European scrutiny, information, and standards and

privileges. There are joint committees of the two Houses on human

rights, parliamentary privilege, tax simplification and statutory instru-

ments. The Public Administration and Public Accounts committees of

the House of Commons exercise broad scrutiny functions.

The Liaison Committee selects the members in proportion to party

representation in the House. In practice, however, it appears that the

membership is selected according to instructions from party whips. The

chairmanship is a matter for negotiation between government and

opposition. Select committees may also recruit outside advisers such as

academics. They interview witnesses but have little real power to probe.

Time, the doctrine of ministerial responsibility and the rules of parlia-

mentary privilege combine to frustrate their activities. In principle, a

select committee has power to call for ‘persons and papers’ at any time,

even when Parliament is not sitting, and failure to attend or refusal to

answer questions could be a contempt of the House. However, enforce-

ment would require a resolution of the House and the committee can

do little on its own (see HC 353 (1991–2) paras 20–21). Particular

problems are as follows:

. Members of the House of Lords, being protected by their own

privilege, cannot be required to attend.

. Members of the Commons, including ministers can probably not be

required to attend or to answer questions without an Order of the

House. In particular there may be a convention that the prime

minister does not appear before select committees.

. Committees have no power to demand papers from government

departments. An address to the Queen (in respect of a secretary of

state) or a formal Order from the House is required.

. Select committees have no independent research resources.

. Ministers have relied on traditional notions of ministerial respon-

sibility as a means of shielding the inner workings of government

from parliamentary scrutiny, slightly tempered by a general under-

taking by ministers to co-operate with committees, for example

by explaining why evidence cannot be given. Civil servants are

protected by ministerial responsibility and cannot be required to

284 General Principles of Constitutional and Administrative Law

attend. Even where they do attend, their evidence has been limited

to describing their ‘actions’ taken on behalf of ministers as opposed

to their ‘conduct’ generally. Thus civil servants cannot give evidence

about cabinet matters, or the consultation process within govern-

ment, or the advice they gave to government, or policy alternatives.

Indeed ministers have sometimes forbidden civil servants from

appearing, in particular on the grounds of national security, ‘good

government’ and ‘excessive cost’. However, this remains controver-

sial. In 1986 the Defence Select Committee claimed the absolute right

to secure attendance from civil servants (HC 519 (1985–6)), and in

1994 the permanent secretary in the Overseas Development Depart-

ment disclosed to the Public Accounts Committee that ministers had

over-ridden his advice (Times, 18 January 1994, see also Civil Ser-

vice Code, HC 588 (1977–8) paras 7.5–7.27; HC 92 (1982–3); HC 100

(1986–7); 123 HC Deb. 572–5 (1987); HC 353 (1991–2) paras 201; see

Chapter 14).

Select committees have drawn public attention to important issues

and have exposed weaknesses in governmental policies and procedures.

Their capacity to do this may have a deterrent effect on government

departments. On the other hand, their reports do not necessarily lead to

action or even to debate in Parliament and they are not tools for extrac-

ting information. To this extent the view of the Procedure Committee

that select committees have been a modest success in requiring gov-

ernment to explain itself is perhaps a little sanguine (HC 19 (1989–90)

paras 356–7). On the other hand the backbench composition of select

committees and their practice of seeking consensus have given them a

certain independent status.

Except for committees of the whole House and some minor com-

mittees all House of Lords Committees are select committees who can

therefore accumulate expertise. Select committees in the House of

Lords deal with subjects rather than departments reflecting the role

of the Upper House as a forum for the detailed discussion of impor-

tant issues free of immediate party pressures. The Science and Tech-

nology Committee, the European Committee and the Environmental

Committee are particularly well regarded.

12.6 Redress of Grievances

Overlapping with Parliament’s duty to supervise the executive is the

duty of members of Parliament and the right of Parliament collectively

285

Parliamentary Procedure

to seek the redress of the grievances of subjects of the Crown. Pro-

cedurally this depends upon opportunities being made available to

backbench members to raise individual grievances. One problem is the

possibility of conflicts with party interests, another is the lack of

resources including time. No parliamentary time is reserved for the

redress of grievances as such. An MP is able to give publicity to a

grievance by placing it on the parliamentary record. Apart from that,

the process is haphazard.

The main procedures available are parliamentary questions, ad-

journment debates, and, perhaps most effectively, informal commu-

nications with ministers, although, as we have seen, the latter are not

always protected by parliamentary privilege. All these suffer from the