Independent report

SSAC response to the Commons Procedure Committee inquiry on the scrutiny of delegated legislation related to exiting the EU

Published 3 October 2017

Is there a role for bodies similar to the Social Security Advisory Committee (SSAC)?

The SSAC arrangements

The Social Security Advisory Committee (SSAC), set up by primary legislation in 1980, was established with the independent statutory remit of scrutinising draft secondary legislation on social security – with its advice available to both Government and Parliament.

With a few exceptions, Ministers are required to submit regulations in draft to the Committee. If SSAC decides to undertake a scrutiny of them as a formal reference, Ministers are obliged to publish SSAC’s report and the Government’s response to it when those regulations (whether amended or not in the light of SSAC’s comments) are tabled in Parliament. If, as in the majority of cases, SSAC takes a more informal approach in considering the draft regulations, the normal custom is still to publish any comments or exchanges with Ministers even though there is no requirement for formal tabling.

In 2016 SSAC scrutinised 44 sets of regulations, one of them treated as a formal reference. In most cases scrutiny involves departmental officials presenting the draft proposals to the Committee at its monthly meetings providing the opportunity for SSAC to test and explore the issues in some detail. But the Committee’s statutory remit does not extend to primary legislation. In discharging its scrutiny of secondary legislation it is therefore mindful that Parliament has already established the broad direction and principles of policy in the primary powers; its role is not to challenge that but to explore whether the draft regulations are based on robust evidence about the best way to articulate the detail of that policy intent and to design its implementation.

This arrangement for social security legislation is unusual and not mirrored in other areas of legislation. In part this reflects the much higher than average dependence on often complex regulations in setting the terms of social security support for people of working age, with the underpinning primary legislation providing only the broad framework. SSAC’s reports and comments therefore provide independent input on detailed points of policy and on implementation - both to support Government’s own deliberations, and to highlight key issues for the benefit of MPs, Peers and Westminster Committees as regulations pass through the Parliamentary process.

Potential relevance to Brexit

The early stages of the passage of the enabling Brexit legislation have highlighted that exit and transition from the UK’s membership of the EU will require heavy reliance on secondary legislation across all affected areas of Government. This will occur in two stages:

• First, at the exit point in March 2019, when the Government’s stated intention is to use regulations to transpose EU legislation into UK law on an exactly comparable basis, to ensure continuity of the status quo and avoid any legal hiatus.
• Second, as the Government develops proposals to amend the transposed EU legislation. Although the key principles of any policy changes would be set in primary legislation, there is likely to be a need in some areas of Government for much of the detail of policy and implementation to be in regulations – in a similar way to existing practice for social security.

Concerns have been expressed about whether the powers proposed in the current draft of the Bill would unduly weaken Parliament’s ability satisfactorily to scrutinise these secondary legislative processes. So, could a body or bodies on the same broad model as SSAC therefore play a useful role in providing added transparency and independent input to inform and support Parliament’s deliberations at these two stages, while avoiding the risk of hampering and unduly holding up the effective operation of Government?

The two stages involve rather different considerations. In the first, the intended automatic translation of EU provisions without amendment, any issues are likely to be heavily legal in nature and therefore more narrowly focussed than the way SSAC operates. But there may be a case for a single overarching independent body, perhaps as an arms-length body of the Department coordinating the legislation, established in statute on a time-limited basis. Its role would be to provide assurance that the form of the legislation does indeed achieve the proposed purpose and that there are not unintended effects and consequences. Membership would need to include expertise on the operation and effect of both EU and UK law, together with knowledge of those areas of policy most affected by EU exit.

The second stage would be much closer to the scope and coverage of the type of scrutiny and advice which SSAC currently provides. In those areas of Government where EU law currently provides much of the legislative framework for policy, it seems highly likely there will be a need for a large volume of new secondary legislation to articulate the detailed design and implementation of any new primary powers taken to reshape UK policy post-Brexit. The Department for Environment, Food & Rural Affairs (Defra) is perhaps the obvious example, but other areas of Government may well be significantly affected.

There could therefore be a strong case for establishing on a more permanent basis new advisory committees like SSAC as arms-length bodies of the Departments most affected. (SSAC’s existing role and remit would remain in place in relation to any Brexit-influenced proposed changes in social security legislation). They would carry out a similar role to SSAC of scrutinising the draft regulations that provide the detailed articulation of any new primary powers to adapt UK policy. These bodies might be established either as part of the overarching Brexit legislation or within new primary legislation covering specific policy and departmental areas.

As with SSAC, membership would need to be broadly drawn to ensure knowledge and understanding of all key areas and interests impacted by the policy changes, and with Ministerial appointments to the Chair roles subject to Select Committee scrutiny. The role would be both to provide constructive advice and challenge to Ministers at the draft regulations stage on the best detailed design and implementation of policy; but also with the right and power to provide independent input to Parliament on key issues when the resulting regulations were formally laid.

Conclusion

The way SSAC operates has demonstrated that it is possible to use this process to strike an appropriate balance between, on the one hand, adding independent constructive challenge and transparency to the detail of legislative proposals which supports Parliament’s scrutiny role and, on the other, doing it in a way which allows the Government of the day to proceed to implement its business in a timely way. There is now the opportunity to extend these types of arrangement, already well-established in the field of social security, to make an important contribution to the unprecedented challenges that Brexit presents both for policy development and legislative change across Government, and for Parliament’s ability effectively to scrutinise resulting secondary legislation.

Paul Gray

Chair
Social Security Advisory Committee

2 October 2017