The consequences of insufficient legislative scrutiny: submissions for Parliamentary reform

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This submission’s first change advocates for a post-legislative committee scrutinising statutory drafting. The second proposes that all codes of practice be subject to the affirmative resolution procedure. Although these submissions are independent, both assess the parliamentary process through the lens of legislative scrutiny. Of course, not all issues with legislation can be solved with scrutiny. However, these submissions reflect the shift in Parliament’s role, having become ‘less the makers of legislation and much more the scrutinisers of legislation’.[1] These submissions will be explored alongside contemporary case studies so as to demonstrate the potentially harrowing consequences of insufficient scrutiny of legislation.

1. Post-Legislative Committee Scrutinising Statutory Drafting

Despite the rule of law requiring that all law, including legislation, be accessible,[2] this is often far from reality. It will be demonstrated that the current relationship between drafting and amendments results in poor-quality legislation which is allowed to survive through insufficient scrutiny (a). This has constitutional, democratic and rights-based consequences. This submission will advocate the introduction of a post- legislative committee scrutinising statutory drafting, and will explore the legislative position (b.i), formation (b.ii) and process (b.iii) of the committee, along with potential criticisms.

a. Drafting Flaws

The Office of the Parliamentary Counsel (OPC) drafts legislation throughout the legislative process, beginning with instructions received from Government departments. Despite criticisms during the late 1900s that statutory language was ‘unnecessarily complex’,[3] the modern OPC mostly adopt ‘a plain English style which would have been unrecognisable to their 1970s predecessors’.[4] Although there is no pre-legislative scrutiny of drafting,[5] these initial bills are normally of high quality, having been subject to internal ‘criticism, if necessary to destruction’.[6]

This is not the end of the OPC’s role, with further drafting being required throughout the Parliamentary process. In theory, the initial bill functions as a framework, meaning ‘the possibility of what [the Government] can do by way of amendment is somewhat restricted’.[7] Despite this, not only is there increased time pressure on a bill upon entry to Parliament, ‘but the constraints of the Parliamentary rules of procedure inhibit the draftsman’.[8] The ‘inadequate’[9] conditions given to OPC to affect a huge number of amendments results in poor-quality drafting.

Between 2007 and 2015, amendments made in the houses increased the length of legislation by an average of 40%.[10] Of 29 health and criminal bills, an average of 400 Government amendments per bill were added.[11] These amendments fundamentally change the nature of a statute, but are not subject to sufficient scrutiny – this results

in sub-optimal legislation. A clear example of this is the Criminal Justice Act 2003 (CJA). This Act, setting out sentencing law, has been described as ‘labyrinthine’,,[12]‘astonishingly complex’,[13] ‘deeply confusing’,[14] and ‘at best, obscure and, at worst, impenetrable’.[15] Furthermore, it took one judge 4 hours and 48 minutes to understand a single provision.[16] This is no surprise, with the Act being 476 pages long and containing 339 sections and 38 schedules.[17] The consequences of this poor drafting are obvious. The Director of Liberty stated that the Act will ‘send more innocent people to prison’,[18] and that allowing it to become law was a ‘shameful attack on justice’.[19]

Upon entry to Parliament, the time pressure placed upon a bill increases significantly. During the 2016/17 session, 13 of 24 successful Government bills passed on the last day of sitting.[20] These bills, left to the last minute, cannot have been subject to sufficient scrutiny.[21] Ideally, Parliament’s input should involve ‘clarifying legislative language’.[22] However, parliamentary ‘amendments […] receive less parliamentary scrutiny than the originally drafted legislation’.[23] This is resulting not in clarification of legislative language, but obfuscation.

Statutes such as the CJA 2003, relating so explicitly to citizens’ liberty, must be clear and accessible – ‘a citizen, before committing himself to any course of action, should be able to know in advance what are the legal principles which flow from it’.[24] In reality, the huge number of amendments to legislation puts pressure on the OPC, resulting in sub-optimal drafting void of scrutiny.

b. The Committee

i. Legislative Position

As the time pressure on bills through Parliament is so immense, increased scrutiny upon entry to Parliament is infeasible. Post-legislative scrutiny, however, allows for much more effective scrutiny than after entry to Parliament or pre-legislatively.

Theoretically, pre-legislative scrutiny can prevent ‘half-baked’[25] bills entering Parliament, allowing for increased scrutiny. In practice, however, the procedure is useless for scrutinising drafting. Firstly, despite the ‘default position’[26] being ‘that bills will be published in draft’,[27] this is not always possible.[28] In fact, few are. Between 2017-19, 10 draft bills were published,[29] much lower than the annual average of 49 Acts passed.[30] Furthermore, drafts are sometimes published containing only ‘a mix of draft clauses and statements of intent’,[31] even being released ‘a few days before the end of the session’.[32] More fundamentally – as considered in part a, a bill’s passage through Parliament can completely change its appearance, meaning pre- legislative scrutiny of drafting is often wasted.

Post-legislative scrutiny is much more effective, and therefore this submission takes inspiration from the Renton Committee’s proposal for post-Royal Assent scrutiny of drafting.[33] Much like pre-legislative committees, post-legislative committees make non-binding recommendations to the executive. The acceptance rates of these recommendations correlate with the size of the action requested, with ‘small’ actions being accepted in part/fully 53% of the time.[34] As the recommended action’s size grows to ‘medium’ and ‘large’, the acceptance rates fall to 43% and 0% respectively.[35]

Caygill hypothesises that drafting-related recommendations are likely to be rejected by Government.[36] However, given that only 16% of post-legislative recommendations call for such change,[37] it cannot be said with certainty whether the Government views legislative recommendations as ‘large’, ‘medium’ or ‘small’. Each is possible depending on the scale of drafting change necessary. It is suggested that a Government, in meeting the Good Law requirements,[38] would be keen to increase statutes’ accessibility, provided it does not adjust policy (b.iii). As such, Caygill’s concerns can be discounted.

Another criticism of post-legislative scrutiny concerns legislative intent. OPC’s role is to create written incarnations of Parliamentary intention,[39] and therefore a post- legislative scrutiny of statute could be considered to overwrite Parliament’s intention.

It is submitted, however, that in passing the recommendations to the executive, and therefore giving the Government the option to re-submit a re-drafted bill, the process remains sufficiently democratic.

ii. Formation

Dale proposed a Law Council composed of legal professionals and lay authors to scrutinise drafting.[40] However, including non-parliamentarians in a post-legislative committee is not democratically viable, particularly considering drafting is concerned so explicitly with the written intent of Parliament. Wider opinion could be obtained through professional consultation and implementation of the Public Reading Stage (PRS). Despite PRS’ pilot not leading ‘to effective public participation’,[41] interest was clear, with 80.4% of 1099 comments concerning specific schedules.[42] The clear benefits of using online feedback will contribute to ‘open and better laws [through] harnessing the experience of the public’.[43]

The committee should consist of Peers, MPs and OPC. The rationale behind the Lords’ inclusion lies in the house’s having ‘essentially reinvented itself as a chamber of legislative scrutiny’.[44] Its members are committed ‘to the work of the committees’,[45] as reflected in ‘high attendance levels’.[46] Their inclusion is essential to meticulous scrutiny.

iii. Process

A potential criticism could concern the proposal’s feasibility, particularly regarding which statutes should be reviewed. It is suggested that an Act’s policy be used to decide whether it needs reviewing, helping to avoid ‘wast[ing] resources attempting detailed reviews of every Act’.[47] Not all Acts need to be easily understandable,[48] meaning technical, industry-specific Acts can be ignored. Only Acts with direct public policy implications (i.e. CJA 2003) should be considered. Another concern, raised by Norton,[49] concerns motivation. MPs are unlikely to engage in post-legislative reviews offering ‘little political pay-off’.[50] However, focusing on Acts linked to public policy will increase MPs’ motivation for the program, meaning this concern can be discounted.

Greenberg notes that ‘”line-by-line” scrutiny’[51] has become diluted and ‘can no longer be described as taking place’.[52] Therefore, this committee’s scrutiny should be focused on a detailed substantive analysis of drafting. To ensure consistently rigorous scrutiny, Oliver’s standards and checklists should be incorporated,[53] with uniform checks being ‘applied consistently to all measures’[54] to avoid the ‘sense of point scoring’[55] which so often leads to inconsistent scrutiny.

Principally, the committee should seek to identify poor-drafting practice, perhaps based on the Good Law points of consideration.[56] For example, the committee should check the use of, insofar as is possible, ‘plain language’[57] to keep the Acts as user-friendly as possible. Although lengthy statute may be unavoidable, the committee should seek to ensure that the legislation’s structure is neither ‘unclear’[58] nor ‘disjointed’.[59] This analysis should fundamentally seek to ensure that the statute is accessible, and that poor-quality drafting added during the legislative processes is fixed.

c. Conclusion

This submission has outlined the current lack of scrutiny of the drafting of amendments to bills, and the clear consequences that can arise from this. The use of a post-legislative committee to scrutinise drafting will prevent poorly drafted legislation remaining on the statute book, improving the accessibility of legislation.

2. Subject All Codes of Practice to a Revised Affirmative Resolution Procedure

a. Codes of Practice

The most common form of secondary legislation is the statutory instrument (SI), with an average of 3,000 being laid per year.[60] Another form is the code of practice (‘code’). Despite being known under various names, the code is best described as an ‘authoritative statement of practice to be followed in some field’.[61] These documents obtain their authority from other Acts of legislation.[62]

Codes take the form of ‘quasi-legislation’ and are often immune to scrutiny.[63] Despite offering advantages to an executive, this lack of scrutiny is contrary to the rule of law (a.i), and through analysis of Approved Document B (ADB) it will be demonstrated that this can have disastrous consequences (a.ii), clearly relevant to the Constitution, Democracy and Rights Commission. This submission will therefore suggest that all codes be uniformly subject to a revised affirmative resolution procedure, and will continue to explore potential criticisms of this suggestion (b).

i. Flaws

Codes bring with them significant benefits, helping, for example, to ‘remove a mass of clutter from the text of a statute’[64] whilst incorporating plain English into the law.[65] Furthermore, codes preserve Parliamentary time whilst allowing the executive to easily update its regulatory regime – the ‘whole point of delegated legislation is that Parliament does not have to look at it closely’.[66]

This timesaving introduces a dilemma and creates law which has not passed before Parliament.[67] As one Select Committee noted: ‘The Executive is thereby freed from the […] full parliamentary process; and Parliament is likewise freed from […] detailed scrutiny’.[68] This is no new revelation, even in 1986, a peer raised that ‘codes of practice sometimes dealt with matters of importance but were not subject to Parliamentary approval procedures’.[69] Although some codes are subject to the negative resolution procedure, and even fewer to the affirmative resolution procedure (i.e. the Highway Code),[70] the process is inconsistent, allowing law to pass with insufficient or non-existent scrutiny.

Lack of scrutiny is not solely responsible, and although the civil service is also due reform,[71] Parliament must be in place as a preventative body. A failure to do so passes law with a ‘lack of guarantee of accuracy’.[72] This is particularly concerning when considering the legal currency of these documents. Most codes fall within a quasi-legislative grey area,[73] not being strictly binding, but adopting an ‘evidential status’[74] and being ‘unlawful unless there is a cogent reason for’[75] departing. Clearly, if liability can result, these documents require accuracy – a lack thereof is contrary to the rule of law.

Despite only 14 pieces of secondary legislation avoiding scrutiny in 2017,[76] quantity does not correlate with the grave seriousness of the problem – a clear example of this is ADB.

ii. ADB

The Approved Documents are regulatory documents published by the Secretary of State as ‘practical guidance with respect to the requirements of’[77] the Building Regulations. Although not referred to explicitly as codes, the documents fall within the classifications’ scope, being authorised for publication by the Building Act,[78] yet not requiring Parliamentary review pre-release.[79] Although the documents’ legislative architecture is scrutinised through the Building Regulations,[80] this is given only minimal scrutiny under the negative resolution procedure.[81]

ADB outlines the regulatory standards for fire safety in tower block construction,[82] setting out that the ‘external walls of the building shall adequately resist the spread of fire over the walls’.[83] How this resistance should be provided is established through various sections of the document.[84] Although appearing to offer succinct guidance, the document is flawed when used to determine what cladding is permitted on towers.

Many tower blocks use a polyethylene-cored aluminium-composite cladding (PE AMC).[85] ADB dictates that only Class 0 insulators are permitted to clad certain tower blocks.[86] However, due to uncertainty around the definition of Class 0, particularly in conjunction with the further, more ‘rigorous test’[87] for ‘limited combustibility’,[88] the industry was led to believe that PE AMC was a suitable cladding, being certified for use in 2008.[89] In reality, the material was not simply not fire-retardant, but combusted ‘like solid petrol’.[90]

These guidelines, clearly unfit for purpose, led to harrowing consequences. In 2009, six died in the Lakanal House fire. Her Honour Frances Kirkham, coroner for the inquest, described ABD as ‘a most difficult document to use’,[91] recommending clearer guidance regarding the ‘external envelope of the building’,[92] as well as re-drafting with regard given to the document’s audience.[93]

In response, the Government omitted to act, deciding not to alter ABD despite this being ‘the chance […] to prevent what happened at Grenfell’.[94] Although not the focus of this submission, this inaction must be acknowledged as a causative factor of the 2017 Grenfell Tower fire, which resulted in 72 deaths and untold devastation for its residents and their families.[95] Upon enquiry, the Government claimed that their ‘understanding is the cladding […] is also banned here’.[96] A clear disconnect existed between the executive’s belief and the document’s interpretation.

Another issue concerns liability. PE AMC fell under two paragraphs within ABD, potentially forming ‘external walls’[97] (legal), or potentially forming ‘insulation’[98] (illegal).[99] There is not necessarily an issue with codes rendering liability. However, it is an affront to the rule of law for such a contradictory document to result in either the establishing,[100] or negating,[101] of criminal or civil liability.

In review, Dame Judith Hackitt described ABD as ‘inconsistent’,[102] ‘complex, ambiguous and not user-friendly’.[103] The report recommended, among other proposals, ‘clarifying the language in Approved Document B’.[104] Clearly, ADB should never have entered the public domain – the fact that it did highlights a major flaw in Parliament’s approach to scrutiny of delegated legislation.

b. Scrutiny of SIs

All codes should be uniformly subject to a revised form of the affirmative resolution procedure (ARP), the negative resolution procedure (NRP) being inappropriate. 74% of SIs are subject to the NRP,[105] a relatively lenient procedure in which legislation is laid in draft, but cannot be made if Parliament votes its disproval.[106] Between 2017 and 2018, only nine of 619 SIs subject to the NRP were debated.

Three factors are responsible for this low figure. Firstly, the Government has no obligation to schedule debate.[107] Secondly, around 80% of SIs come into force within 40 days of being laid and thus before the scrutiny period had expired,[108]  which ‘puts parliamentarians off challenging’.[109] Thirdly, the NRP forbids amendments, allowing only approval, annulment or withdrawal.[110] This non-constructive process encourages parliamentarians to wave SIs through. Accordingly, the houses have rejected just 11 of 169,000 SIs since 1950.[111]

The ARP is much more suitable, despite being much less popular (24% of SIs in 2017).[112] SIs subject to this procedure must pass through both houses, being debated by delegated legislation committees (DLCs).[113] Three DLCs exist, the most popular being the Joint Committee on Statutory Instruments (JCSI).[114] Although its recommendations do not bind,[115] the JCSI has a ‘far greater impact on the process of delegated legislation’[116] than is perceived, and inaction to requests is ‘not an option’.[117] It is submitted that all future codes must be uniformly subject to a revised JCSI.

Drawing on Samuels’ proposal,[118] this revised committee, a Joint Committee on Codes of Practice (JCCP), should run alongside the JCSI, but should review only codes. This separation is in place to counteract the overworked DLCs, which spend an average of only 18 minutes on each piece of secondary legislation.[119] The JCCP must conduct a more thorough examination, sharing its focus between a code’s policy and ‘technical quality’.[120] Considerations should include issues raised by Kirkham and Dame Hackitt, including potential complexities, ambiguities, inconsistencies, and policy flaws. Most importantly, the JCCP should ensure the document is suitable for its target audience, with a failure to meet these strict criteria resulting in amendment accompanied with return to the drafting body.

A clear criticism of this proposal is its feasibility, particularly given Parliamentary time-constraints. Lord Elwyn-Jones shared concerns that a lack of ‘uniformity of style’[121] would make scrutiny of codes difficult. It is suggested that these concerns can be discounted on two grounds. Firstly, the plain English nature of codes makes their scrutiny simpler than SIs’. Secondly, as ADB demonstrates, the current lack of scrutiny simply cannot continue. Parliament’s role has shifted to become the gatekeepers of legislation,[122] and lack of time is no excuse for poor scrutiny – the formation of the JCCP should assist with this.

c. Conclusion

This submission has outlined the clear lack of scrutiny of codes, and the harrowing results that can result from this. The proposed JCCP, in conjunction with the ARP, will allow constructive, meticulous scrutiny of codes, resulting in accurate, safe secondary legislation. This will not solve the problem in its entirety, however this scrutiny will act as another tool in the fight against poor legislation.


[1] Cristina Leston-Bandeira and Louise Thompson, ‘Integrating the view of the public into the formal legislative process: public reading stage in the UK House of Commons’ (2017) 23(4) JLS 508, 509.

[2] Thomas Bingham, The Rule of Law (Penguin 2011) 37.

[3]  Ian Turnbull, ‘Clear Legislative Drafting: New Approaches in Australia’ (1990) 11(3)

SLR 161, 162.

[4] Cabinet Office, When Laws Become Too Complex (2013) 3.

[5] Andrew Kennon, ‘Pre-legislative scrutiny of draft Bills’ [2004] PL 477, 485.

[6] Euan Sutherland, ‘Clearer Drafting and the Timeshare Act 1992: A Response

Parliamentary Counsel to Mr Cutts’ (1993) 14(3) SLR 163, 164.

[7] Robin Dormer, ‘How Bills are Made’ (University of Exeter, 2019).

[8]  Francis Bennion, ‘Statute Law Obscurity and the Drafting Parameters’ (1978) 5(2)

British Journal of Law and Society 235, 239.

[9] ibid.

[10] Institute for Government, Parliamentary Monitor 2018 (2018) 39.

[11] Ruth Dixon and Jonathan Jones, ‘Mapping Mutations in Legislation: A

Bioinformatics Approach’ (2019) 72(1) PA 21, 22.

[12] R v Lang [2005] EWCA Crim 2864 [16], [53] (Rose LJ).

[13] ibid.

[14] R (Crown Prosecution Service) v South East Surrey Youth Court [2005] EWHC

(Admin) [14] (Rose LJ).

[15]  R v Campbell [2006] EWCA Crim 726 [1].

[16]  R v HMP Drake Hall and Minister of State for Justice [2008] EWHC 207 (Admin)

[1] (Mitting J).

[17]  John Spencer, ‘The Drafting of Criminal Legislation: Need It Be so Impenetrable?’

(2008) 67(3) CLJ 585, 586.

[18]  “’Victims justice’ reforms under fire” (BBC News, 21 November 2002)

<http://news.bbc.co.uk/1/hi/uk_politics/2497867.stm> accessed 24 April 2020.

[19]ibid.

[20]  Gemma Byrne, ‘Legislation rushed through with little scrutiny’ (The Institute for

Government, 4 May 2017)

<https://www.instituteforgovernment.org.uk/blog/legislation-rushed-through-little-

scrutiny> accessed 21 March 2020.

[21] ibid.

[22] Institute for Government, Parliamentary Monitor 2018 (2018) 41.

[23] Dixon Jones (n 11) 37.

[24]  Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975]

AC 591, 636 (Diplock LJ).

[25]  Hansard Society Commission on the Legislative Process, Making the Law

(Hansard Society, London, 1992) para 173.

[26]  Cabinet Office, Guide to Making Legislation (2014) para 21.1.

[27] ibid.

[28]  Kennon (n 5) 492.

[29] 29 ‘Draft Bills before Parliament’ (UK Parliament, 2019)

<https://www.parliament.uk/business/bills-and-legislation/draft-bills/> accessed 22

April 2020.

[30]  House of Commons Library, Acts and Statutory Instruments: the volume of UK

legislation 1850 to 2019 (Cbp 7438, 2019) 4.

[31]  Select Committee on the Constitution, Parliament and the Legislative Process (HL

2003–04, 173-I) para 58.

[32]  Select Committee on the Constitution, Pre-Legislative Scrutiny in the 2008-09 and

2009-10 Sessions (HL 2009–10, 78) para 4.

[33] 33 Renton Committee, Preparation of Legislation (HMSO, 1975) 130, para 18.29.

[34]  Thomas Caygill, ‘Legislation Under Review: An Assessment of Post-Legislative

Scrutiny Recommendations in the UK Parliament’ (2019) 25(2) JLS 295, 308.

[35] ibid.

[36] Ibid 299.

[37] Ibid 303.

[38]  ‘The #goodlaw launch: Making legislation more effective and accessible’ (The

Institute for Government ,16 April 2013)

<https://www.instituteforgovernment.org.uk/events/goodlaw-launch-making-

legislation-more-effective-and-accessible> accessed 6 April 2020.

[39] Daniel Greenberg, ‘The Nature of Legislative Intention and Its Implications for

Legislative Drafting’ (2006) 27(1) SLR 15, 17.

[40] William Dale, Legislative Drafting: A New Approach: a Comparative Study of

Methods in France, Germany, Sweden and the United Kingdom (Butterworths 1977)

336.

[41]  Leston-Banderia and Thompson (n 1) 511.

[42] Ibid 515.

[43] HC Deb 12 July 2012, vol 548, col 57WS.

[44] Philip Norton, ‘Post-legislative scrutiny in the UK Parliament: adding value’ [2019]

25(3) JLS 340, 348.

[45] ibid 349.

[46] ibid.

[47] Office of the Leader of the House of Commons, Post-Legislative Scrutiny – The

Government’s Approach (Cm 7320, 2008) 8.

[48] Geoffrey Kolts, ‘Observations on the Proposed New Approach to Legislative

Drafting in Common Law Countries’ (1980) 1(3) SLR 144, 148.

[49] Norton (n 44) 348.

[50] ibid.

[51] Daniel Greenberg, Dangerous Trends in Modern Legislation… And How to

Reverse Them (Centre for Policy Studies 2016) 1.

[52] ibid.

[53] Dawn Oliver, ‘Improving the scrutiny of bills: the case for standards and checklists’

[2006] PL 219.

[54] David Feldman, ‘Parliamentary scrutiny of legislation and Human Rights’ [2002]

PL 323, 328.

[55] Oliver (n 53) 223.

[56] n(38)

[57] Peter Butt, ‘Modern Legal Drafting’ (2002) 23(1) SLR 12, 12.

[58] Cabinet Office, When Laws Become Too Complex (2013) 14.

[59] ibid.

[60] House of Commons Library, Acts and Statutory Instruments: the volume of UK

legislation 1850 to 2019 (Cbp 7438, 2019) 8.

[61] HM Government, ‘Guidance on Codes of Practice and Legislation’ (1989) 10(3)

SLR 214, 215.

[62] Aileen McHarg, ‘What is delegated legislation?’ [2006] PL 539, 541.

[63] Daniel Greenberg, ‘Quasi-legislation’ (Overview Article, 23 January 2020)

<Westlaw> accessed 13 April 2020.

[64] Alan Campbell, ‘Codes of Practice as an Alternative to Legislation’ (1985) 6(1)

SLR 127, 127.

[65] Alec Samuels, ‘Codes of Practice and Legislation’ (1986) 7(1) SLR 29, 29.

[66] Edward Page, Governing by Numbers: Delegated Legislation and Everyday

Policy-Making (Hart 2001) 157.

[67] John Bates, ‘Parliament, Policy and Delegated Power’ (1986) 7(2) SLR 114, 114.

[68] Select Committee on Procedure, First Report (HC 1977-78, 588-I, 17 July 1978)

para 3.3.

[69] HL Deb 15 January 1986, vol 496, cols 1075-1104.

[70] Road Traffic Act 1972, s 37(3); Bates (n 67) 121.

[71] Frederick Ridley, ‘Reinventing British Government’ (1995) 48(3) PA 387, 394.

[72] Ronan Cormacain, ‘Keeling Schedules and Clarity in Amending Legislation’ (2013)

15(1) EJLR 96, 105.

[73] Greenberg (n 63).

[74] HM Government (n 61) 215.

[75] R (on the application of X) v Tower Hamlets LBC [2013] EWHC 480 (Admin) [35].

[76] Parliamentary Monitor, ‘Secondary legislation’ (The Institute for Government,

2019) <https://www.instituteforgovernment.org.uk/publication/parliamentary-monitor-

2018/secondary-legislation> accessed 16 April 2020.

[77] HM Government, Approved Document B (Fire Safety) Volume 1: Buildings Other

Than Dwellinghouses (2nd vol, 2013) 5.

[78] Building Act 1984, s 6.

[79] Building Act 1984, s 6(1).

[80] Building Regulations 2010 SI 2010/2214.

[81] Explanatory Memorandum to Building Regulations 2010, SI 2010/2214, para 6.1.

[82] James Bessey, ‘Cladding: combustibility, terminology and Building Regulations’

(Housing After Grenfell, 18 September 2020) <https://www.law.ox.ac.uk/housing-

after-grenfell/blog/2018/09/cladding-combustibility-terminology-and-building-

regulations> accessed 14 April 2020.

[83] HM Government, Approved Document B (Fire Safety) Volume 1: Buildings Other

Than Dwellinghouses (2nd vol, 2013) pt B4, 95.

[84] Bessey (n 82).

[85] ibid.

[86] HM Government, Approved Document B (Fire Safety) Volume 1: Buildings Other

Than Dwellinghouses (2nd vol, 2013) pt B4, 91.

[87] Peter Apps et al, ‘The Paper Trail: the Failure of Building Regulations’ (Shorthand

Social, 23 March 2018)

<https://social.shorthand.com/insidehousing/3CWytp9tQj/the-paper-trail-the-failure-

of-building-regulations> accessed 16 April 2020.

[88] HM Government, Approved Document B (Fire Safety) Volume 1: Buildings Other

Than Dwellinghouses (2nd vol, 2013) pt B4, para 12.7, 94.

[89] British Board of Agrément, ‘Agrément Certificate Product Sheet 1 – Reynobond

Architecture Wall Cladding Panels’ (08/4510, BBA, 2008)

<https://www.acodi.fr/upload/file/document/bba-reynobond-ta-08-4510.pdf>

accessed 16 April 2020.

[90] Peter Apps, ‘How politics prevented the chance of stopping Grenfell’ (Inside

Housing, 23 July 2018) <https://www.insidehousing.co.uk/comment/comment/how-

politics-prevented-the-chance-of-stopping-grenfell-57311> accessed 14 April 2020.

[91]  Letter from Frances Kirkham to Eric Pickles (28 March 2013)

<https://www.lambeth.gov.uk/sites/default/files/ec-letter-to-DCLG-pursuant-to-rule43-

28March2013.pdf> accessed 14 April 2020.

[92]  ibid.

[93]  ibid.

[94]  Apps (n 90).

[95]  Visual Journalism Team, ‘Grenfell Tower: What happened’ (BBC News, 29

October 2019) <https://www.bbc.com/news/uk-40301289> accessed 14 April 2020.

[96]  Andrew Marr, Interview with Philip Hammond, Chancellor of the Exchequer, The

Andrew Marr Show, BBC One (British Broadcasting Corporation, London, 18 June

2017).

[97]  HM Government, Approved Document B (Fire Safety) Volume 1: Buildings Other

Than Dwellinghouses (2nd vol, 2013) pt B4, para 12.7, 94.

[98]  ibid.

[99]  Bessey (n 82).

[100]  Building Act 1984, s 7(1)(a).

[101]  Building Act 1984, s 7(1)(b).

[102]  Secretary of State for Housing, Communities and Local Government,

Independent Review of Building Regulations and Fire Safety: Final Report (Cm

9607, 2018) 84.

[103]  ibid.

[104]  ibid.

[105]  Parliamentary Monitor (n 76).

[106]  Michael Zander, The Law-Making Process (Hart 2015) 108.

[107] ibid.

[108] Hansard Society Insight, Westminster Lens – Parliament and Delegated

Legislation in the 2015-16 Session (Hansard Society, London, 2017) 5.

[109] ibid.

[110] ibid.

[111]  Robert Lisvane, ‘Why Is There So Much Bad Legislation?’ [2019] SLR 1, 4.

[112]  Parliamentary Monitor (n 76).

[113]  ibid.

[114] ibid.

[115]  Page (n 66) 161.

[116]  ibid.

[117]  ibid.

[118] Samuels (n 65) 34.

[119]  Parliamentary Monitor (n 76).

[120]  ibid.

[121]  HL Deb 15 January 1986, vol 469, col 1087.

[122]  Leston-Banderia and Thompson (n 1) 509.

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