The Senior Assistant Assembly Clerk: Thank you, Chair. Members will recall that the Executive Office recommended a review of the development of a formal process and guidance on the handling of Westminster statutory instruments (SIs) that include a role for the Assembly because they impinge on devolved matters. It is quite a technical review, but the Committee considered it to be important, given the fact that the relevant legislation affects us here. It should therefore be properly managed end to end and scrutinised.
The key points in the evidence to date are that there is consensus among stakeholders on the need for specific input and scrutiny by Northern Ireland Ministers, and some argue that, therefore, in many cases, there can be benefits from Northern Ireland being included in the scope of SIs instead of bringing Northern Ireland-specific legislation through the Assembly. There is a call from stakeholders for a clear and consistent framework and associated end-to-end guidance for Northern Ireland Departments on the handling of Westminster SIs. That call for guidance is coming particularly from Departments.
Some SIs are subject to formal Assembly procedure, but most are not, as you will hear today, and other legislatures have procedures for the latter. The Committee previously noted, in particular, the model in Wales. The Committee considered previously that it would be sensible for any process that is put in place here to be informed by our existing procedures and by models elsewhere. The Committee wrote to the Senedd in January, and a paper came back from the Senedd in the summer on how its process works. There is not time to go through that in detail today, but it will be important to come back to that at a future meeting.
Members will have noted the research paper in their packs, which will be presented shortly. You will hear that there are different types of SI. Anurag will take you through those and highlight the potential scrutiny gaps and potential solutions. There are some key proposed actions in the research paper. Even where SIs are subject to formal Assembly procedure, there still seems to be a potential scrutiny gap in that Committees do not automatically defer SIs to the Examiner of Statutory Rules (ESR) at the start of each mandate in the same way that they do with statutory rules. It may be helpful to write to the Examiner of Statutory Rules and the Joint Committee on Statutory Instruments (JCSI) at Westminster to understand the scope of that gap and the ESR's views on a role for her in the technical scrutiny of statutory instruments.
You will also hear that there is a significant scrutiny gap where SIs are not subject to Assembly procedure. Those are dealt with in an inconsistent manner, which is not surprising as there is no procedure in place for them in the Assembly. As you will hear, Ministers provide consent or are consulted on the SIs, and therefore you may consider that there should be a role for Committees. A key proposed action is to share the research paper with Statutory Committees for information, noting that this Committee will consider the evidence and make recommendations to the Assembly in due course.
Mr Anurag Deb (Research and Information Service): Thank you very much and good morning, Chair and members. You will be aware that, as the Clerk said earlier, this is the second briefing on this issue. The first was provided by my RaISe colleague, Ray McCaffrey, in May 2025, and that report dealt more broadly with comparative practices in the Scottish Parliament and the Welsh Senedd. This briefing supplements that one and provides more focused attention on the details of the kinds of statutory instruments that are coming into the Assembly and the devolved Departments from Westminster, as well as some of the scrutiny gaps that might be looked at and some of the pre-existing Assembly mechanisms that members may wish to consider as being analogues in this inquiry.
The key points in my briefing are linked to the fact that here are three types of SI that have Assembly involvement. The first involves SIs that are subject to a formal Assembly procedure, such as negative or affirmative resolution, in the present mandate. I have taken those from the start of the mandate in 2022 to 15 June 2026. Some 20% of the SIs coming from Westminster have been subject to a formal Assembly procedure. Those that are not subject to a formal Assembly procedure but are subject to a formal role for the devolved Departments and Ministers, whether that is by way of consultation or concurrence or whether that is jointly made by a devolved Minister or, indeed, whether the Department has to consent to the SI, form around 71% of the SIs that have been received in the current mandate. Finally, those that are not subject to formal roles, either for the Assembly or a Department, but involve, potentially, some role for a Department and thus, potentially, some scrutiny function for Assembly Committees, account for 9% of the total, the least numerous received in the current mandate.
There are issues relating to two major scrutiny gaps. The first involves technical scrutiny of SIs that are subject to Assembly procedure, and the second involves uncertainties around how many of the SIs that are not subject to formal Assembly procedure are being brought to the attention of the Statutory Committees of the Assembly.
I will draw out those two key technical scrutiny points in the next two slides. The first shows the process for SIs that are subject to Assembly procedure, which is a condensed version of the Westminster scrutiny process. At Westminster, there are specific variations depending on whether an SI is addressed only to the House of Commons or to both Houses of Parliament, but, in general terms, when a statutory instrument is laid before Parliament, the technical scrutiny that is showed on the left-hand side of the flow chart on the left is done through the Joint Committee on Statutory Instruments (JCSI). The policy or substantive scrutiny is done through the Delegated Legislation Committee (DLC) in the Commons or the Secondary Legislation Scrutiny Committee (SLSC) in the Lords. In the Lords, policy scrutiny can also be carried out in Grand Committee. The product of the technical scrutiny and the substantive scrutiny then goes to a vote in both Houses of Parliament for an affirmative resolution instrument or, for a negative resolution instrument, a prayer to annul.
In the Assembly, however, because there is no formal procedure for technical scrutiny of SIs, it is not immediately apparent, from the publicly available literature at least, what happens on the technical scrutiny side of things if an SI comes into the Assembly. Members will be well aware of the role of the Examiner of Statutory Rules in relation to technical scrutiny, but her remit does not extend to statutory instruments. There is a technical scrutiny gap. The substantive, policy scrutiny is carried out by the Statutory Committees, but it is not apparent from Statutory Committee reports or the Hansard record of plenary debates on SIs that technical scrutiny matters — important things such as vires, retrospectivity and drafting errors — are looked at or, at least, reported on, as in reports from the ESR, by the Statutory Committees to the Assembly in plenary session. That is the technical scrutiny gap in relation to SIs that are formally subject to Assembly procedure. The relevant analogy that Members may wish to consider is with the role of the Examiner of Statutory Rules. Members may wish to write to her to take her views on the issue.
The final slide shows the process for SIs that are potentially subject to Assembly scrutiny where there is a formal role for a devolved Department. A Department might be asked to consent to or concur with an SI, or it might be formally consulted by a UK Department that is moving the SI motion in Westminster. However, there is inconsistency in the number of such SIs that are brought to the attention of the Statutory Committees. As Members will see from appendix 2 of the research briefing, 70% of SIs are not brought to Statutory Committees, but that figure needs to be understood in context. Between 2022 and February 2024, there were no Statutory Committees to report to, and the 70% figure encompasses that time, but, once the Assembly came back in February 2024, the figure fell to 56%. That is, from February 2024 to June 2026, 56% of SIs were not brought to the attention of the Statutory Committees by their respective Departments.
There is a lot of variation in the policy areas to which those statutory instruments relate. Again, members will find the detail in the briefing paper. A lot of social security and financial SIs — technical ones — are not being brought to the attention of the Statutory Committees simply because there is no procedural requirement in Standing Orders for that to happen. However, some Departments bring such SIs to the attention of the Committees, either before the SI has to be consented to or concurred with or after the fact. One example involved the Procurement Regulations 2024, which were made in 2024, after the Assembly came back, but were drafted in late 2023 and had to be tied in with a particular accounting period. When the regulations were drafted, the Department of Finance was required to be consulted by the UK Government, but it could not bring that experience to the attention of the Committee for Finance because it was not sitting at the time. Nonetheless, the Department brought the regulations to the attention of the Committee after the fact. So there is some inconsistency around whether and when an instrument should be brought to the attention of a Committee.
The pre-existing legislative consent motion (LCM) procedure is a relevant analogy. Indeed, as my colleague Ray McCaffrey stated in his briefing, the statutory instrument consent motion that the Welsh Senedd uses is fundamentally similar in concept to the LCM that is used by all three legislatures for signifying consent to Bills that are moved by the UK Government that deal with the devolved areas. Members may wish to consider substantively the statutory instrument consent memorandum (SICM) and, in fact, the LCM procedure, as the model on which to consider the scrutiny gap in relation to those SIs.
That concludes my briefing. I am very happy to take any questions. I apologise for the technical density of all of that, but it cannot be helped. [Laughter.]