Making better law

MPs are debating motions on ‘made negative’ Statutory Instruments (SIs) on three successive days this week. While the debates will give a last-minute boost to the government’s record for the handling of such SIs in the 2019-21 session, they also highlight how the government’s control of time undermines MPs’ role in scrutinising such Instruments.

Most of the UK’s general public law is made not through Acts of Parliament but through delegated legislation in the form of Statutory Instruments. What is delegated legislation and how does the parliamentary scrutiny system for this legislation work?

There was controversy on 9 February over whether the government had used procedural trickery to swerve a backbench rebellion in the House of Commons on a clause inserted in the Trade Bill by the House of Lords. Apparently, it was something to do with ‘packaging’. What does that mean, and was it true? The answer is all about ‘ping-pong’.

The end of the transition period is likely to expose even more fully the scope of the policy-making that the government can carry out via Statutory Instruments, as it uses its new powers to develop post-Brexit law. However, there are few signs yet of a wish to reform delegated legislation scrutiny, on the part of government or the necessary coalition of MPs.

The government has established an independent review of judicial review – but post-legislative scrutiny has not yet been conducted on the previous reform of the system, in the Criminal Justice and Courts Act 2015. This is typical of the low priority given to post-legislative scrutiny by both government and Parliament.