Statutory instruments – sometimes described as secondary legislation – sit on the boundary between lawmaking and regulation.
Unlike primary legislation (the Bills we all know and follow diligently through various stages of parliamentary scrutiny before they become Acts), statutory instruments (SIs) are discussed by MPs and Lords only in rare (and usually carefully specified) cases.
Most of the time, a Secretary of State decides to make regulations (yes, that’s another name for SIs) and publishes them – they become law immediately, although there is a nominal 40 day period for people to complain about them.
On this basis, you’d expect SIs to be used only in uncontroversial circumstances – to enact previously agreed policy. And that’s the way it is meant to work – policy on the face of the bill, practical implementation in the SIs. And for stuff that is too technical (or dull) to be in an SI – an independent, arms-length regulator, makes the call.
Spooky, scary
A “skeleton bill” is a piece of primary legislation that is primarily concerned with giving the Secretary of State powers to do things via SIs. These are unpopular among parliamentarians and informed observers because they put the thing that is meant to be discussed – the policy – out of bounds during parliamentary scrutiny.
In 2021 the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) defined a skeleton bill as:
where the provision on the face of the bill is so insubstantial that the real operation of the act, or sections of an act, would be entirely by the regulations or orders made under it
As with other parliamentary bodies (the House of Lords Constitution Committee, the Secondary Legislation Scrutiny Committee) it is of the belief that skeleton legislation should only be used in the most exceptional circumstances – the pandemic was cited as one example of such a situation.
Skeletons on parade
In higher education and skills we’ve had more than our fair share of skeletons: very short, technical, bills where the policy action is primarily in SIs. Let’s run them down, from newest to oldest.
The Institute for Apprenticeships and Technical Education (Transfer of Functions etc) Bill 2024 is supposed to be bringing about a new agency, Skills England. However, you will look in vain for the words “Skills England” on the face of the bill: what is there generally tidies up the implications of getting rid of the Institute for Apprenticeships and Technical Education by assigning powers and responsibilities to the Department for Education.
The Lifelong Learning (Higher Education Fee Limits) Act 2023 was promoted as providing the underpinnings of the Lifelong Learning Entitlement – in practice everything from fee levels to regulation to the speed of implementation is at the whim of the Secretary of State and a selection of SIs.
The Skills and Post-16 Education Act 2022 provides further initial LLE underpinnings, alongside a grab bag of other higher education and skills related interventions (LSIPs, essay mills, new and scary powers for OfS). But you’d be hard pushed to identify, much less offer scrutiny to, a central animating policy idea.
The Advanced Research and Invention Agency Act 2022 was fairly clear in bringing about a new research funding body, ARIA. However, if you want to know what it might research, to what level it will be funded, how it relates to other research funding or research performing bodies, or how it will be held to account for the way it uses public funds, you will be disappointed.
Let battle commence
And the Higher Education (Freedom of Speech) Act 2023 is short, and technical, but arguably it is not a skeleton bill. There is plenty of policy in there to get stuck into – indeed, it spent a day under two years before parliament (a record for the modern era). But, as it turns out, SIs held the key to the extent to which measures are implemented, and when.
It illustrates a point at which every bill may be seen as a skeleton bill of a sort: the use of SIs for commencement.
In broad terms a bill becomes law at the moment it is given Royal Assent – if the King signs it off (metaphorically) on a Tuesday morning at 10am, it is the law of the land from Tuesday morning at 10am onwards.
There may be some circumstances where this is not appropriate – for instance if a bill sets up a duty on something or someone, and then provides consequences regarding the way this duty is discharged. For this reason, you sometimes see relative (six months after assent, for example) or absolute (1 August 2025) dates in the “commencement” section of the act, allowing for a delay to get things in order or to give a grace period to allow time to comply with the new rules.
Even then, it may not always be possible to put a precise date on these things. Perhaps an act makes a new public appointment – this might need time to recruit, interview, and approve a person – and then give that person new powers. As you can’t really give powers to something, or someone, that doesn’t yet exist a Secretary of State may commence these powers only when the post is filled, and (yes) an SI is the tool to do this.
(as a fun aside, the reason I keep capitalising Secretary of State in this piece is because when an act gives powers to a secretary of state it doesn’t just mean the secretary of state of the department that “owns” the bill – it means any secretary of state. It’s a hangover from a time when there was only one secretary of state for the whole government – and the upshot of this is that, technically, Nadine Dorries could have made regulations about the use of the UK’s nuclear deterrent while she was Secretary of State for Culture. It really is a wonder that we still all exist)
I choose not to choose
As I noted the other week, a Secretary of State is equally able to decide not to use their commencement powers. There’s not really any formal or legal comeback on a choice like this – although there could be noisy complaints where the decision is a high profile one and can be seen as the expressed will of parliament. In the comments, Julian Gravatt correctly notes that the Easter Act 1928, which would sensibly fix the date of Easter as being the second Sunday in April each year, has yet to be commenced – I have yet to hear from the Free Speech Union on this breach of the democratic will of the people.
If it sounds like I’m being flippant here, be aware that there is a serious point too. If you take the fundamental standpoint that policy gets better with scrutiny and that ultimately parliament expresses the will of the people, the idea that a minister could just ignore stuff is a bit of a worry.
There are sensible reasons for this – I don’t want every element of the HESA Student specification to be discussed on the floor of the commons, I don’t really want the minister explaining to parliament why she wants to give OfS another month to properly make sense of consultation responses – but if you cast your mind over the list of acts above it does feel like an unpleasantly long time since the Commons or the Lords had a serious discussion about higher education policy that had any chance of having an impact on the way things work.
There’s a part of me that still remembers the low information nature of some of the conversations that did happen during the extended stay of the Higher Education (Freedom of Speech) Act – but if you think back even further (to the 2017 Higher Education and Research Act) it is possible, especially in the Lords, for the government to get useful and meaningful advice on their proposed actions which will have the pleasing upshot of making higher education work better.
And perhaps we need more of that as we design the next phase of higher education policy.
