Select Committee on Procedure First Report


FIRST REPORT

The Procedure Committee has agreed to the following Report:—

DELEGATED LEGISLATION

Introduction

1. In June 1996, the Procedure Committee laid before the House a report on delegated legislation.[16] This concluded that there were defects in the current system for considering such legislation and put forward a package of proposals for remedying them. No Government response to the report has yet appeared. However, in May 1999 the present Leader of the House, the Rt Hon Margaret Beckett MP, acting in her capacity as Chairman of the Select Committee on Modernisation of the House of Commons, requested the Procedure Committee to look again at its 1996 report, and invited the Committee to consider in particular whether any of its recommendations should now be implemented by the House.

2. In autumn 1999 the Committee held four evidence sessions. The witnesses were Sir Peter Emery (former Chairman of the Committee), the Clerk of the House, and the Chairmen and clerks of the Joint Committee on Statutory Instruments, the House of Lords Select Committee on Delegated Powers and Deregulation, the Deregulation Committee and the European Scrutiny Committee.[17] We received an informal briefing from the Clerk of Delegated Legislation and his immediate predecessor.[18] In addition, we received written evidence from a variety of sources, including the Chairman of Ways and Means (expressing the views of the Chairmen's Panel), and other Members of the House.[19]

3. The 1996 report was a comprehensive and measured appraisal of the system of parliamentary scrutiny of delegated legislation. We have not sought to duplicate the detailed analysis carried out by our predecessors. In large measure this remains valid and it underpins our more summary exposition of problems and proposed solutions. We have therefore confined ourselves to seeking updated statistical information, to examining whether any of our predecessors' recommendations have been invalidated or undermined by subsequent procedural developments, and to giving our views on what action we believe the House and Government should now take.

4. It will be useful to state at the outset that—with minor modifications, spelled out in paragraphs 36, 41 and 57 below—we support the recommendations in the 1996 report, and are strongly desirous of seeing them implemented. We believe that this package of recommendations is a modest and workable attempt to tackle the deficiencies of the existing system. We do not consider that the recommendations, if implemented, will add to the overall workload of the House or necessarily result in longer sitting hours. The recommendations should be seen, we believe, as an integral part of the programme of modernising the work of the House.

The Present System of Scrutiny

5. Parliament does not have time to give comprehensive scrutiny to all legislative proposals. The existence of a system whereby detailed, technical or less significant proposals receive a lower level of scrutiny has long been recognised to be unavoidable. The present system, which has grown up over many years,[20] is founded on the distinction between two categories of statutory instrument: "affirmative instruments", which require a positive Resolution of each House to come into effect, and "negative instruments", which can be annulled by a Resolution of either House if passed within 40 days of their laying.

6. An affirmative instrument stands automatically referred for debate in a Standing Committee on Delegated Legislation ("DL Committee") unless the Government agrees that it be debated on the Floor of the House.[21] Debate in Committee arises on a formal and unamendable motion, "That the Committee has considered the draft XYZ Order 2000", and after a maximum of one and a half hour's debate, the Chairman reports the instrument to the House irrespective of whether or not the motion has been agreed to. A motion to approve the instrument is then put to the House, without further debate. Instruments taken on the Floor are debated for up to an hour and a half, also on an unamendable motion.

7. Negative instruments are not debated unless a motion is tabled seeking ("praying") that the instrument be annulled, and the Government agrees either that the instrument be debated in a DL Committee or, much more rarely, on the Floor of the House. For many years the Government has accepted no obligation so to agree. Proceedings in committee are the same as for an affirmative instrument; however, in the case of negatives referred to committee there are no subsequent proceedings on the Floor (a point of some significance given that negatives can only effectively be annulled by a vote on the Floor).

8. All statutory instruments laid before Parliament are scrutinised by the Joint Committee on Statutory Instruments (JCSI). The committee's task is to consider technical but important issues such as whether the instrument is made within the powers conferred by the parent legislation, and whether its drafting is defective. The committee is precluded from considering the actual merits of instruments or the policy underlying them. It has the assistance of Speaker's Counsel and regularly reports to both Houses. Under House of Lords Public Business Standing Order No. 70, no motion for an affirmative resolution of the House of Lords in connection with any instrument may be moved until the JCSI's report on the instrument has been laid before the House. There is no such requirement in Commons standing orders.

9. In the last complete Session, 1998-99, 178 affirmative instruments were laid before the House, of which 150 were considered in committee,[22] 21 were considered on the Floor, and seven were withdrawn. In the same Session, 1,266 negative instruments were laid before the House, of which 28 were considered in committee and one on the Floor.[23]

Criticisms of the Existing System, and the 1996 Report's Recommendations

10. In devising an effective system of scrutiny of delegated legislation, the key question is how best to target Parliament's over-stretched resources of time and expertise. There is widespread agreement that at present those resources are ineffectively targeted. There are three major areas of criticism.

11. Firstly, it is argued that instruments do not receive scrutiny in proportion to their merits. The current system, as outlined in paragraphs 5 to 9 above, rests on the assumption that affirmative instruments are intrinsically more significant and debate-worthy than negative ones. This may be true of a majority of instruments, but it is generally acknowledged that there is a significant minority of affirmatives which deal with matters too trivial or technical to merit debate, and negatives which deal with important or sensitive matters where there is demand for a debate. This mismatch between the level of scrutiny provided for in the parent legislation and the level which is actually appropriate may arise from a variety of factors. Ministers may have up-graded procedure from negative to affirmative as a political concession during committee stage of a bill; contrariwise, the conferral of significant powers may have 'slipped through' Parliament without provision for proper scrutiny; whilst in other cases, circumstances may have changed during the years or decades since the passage of the parent legislation, rendering issues once regarded as important less so, and vice versa. Nonetheless, in the words of the Clerk of the House, "the House is locked into a procedural approach to an instrument by provisions made sometimes many, many years before in the parent act".[24] As a result, the time and expertise of Members is frequently wasted in attendance at DL Committees to consider 'trivial affirmatives', often meeting for a few minutes only; whilst significant changes to the law may pass through Parliament unregarded and undebated because contained in negative instruments.

12. Our predecessors in 1996 briefly considered the question of whether the existing distinction between affirmatives and negatives should be retained. They argued that "there would in theory be something to be said for abolishing the distinction, and creating a uniform category of instruments, with a parliamentary mechanism for determining which required positive approval, based on their inherent significance rather than their statutory basis". However, this would require primary legislation, "and possibly wholesale amendment of much of statute law". They therefore did not recommend such an approach, though they added that were their more modest proposals to prove ineffective, serious consideration should be given to the radical proposal of a uniform category and procedure for all delegated legislation.[25]

13. Our predecessors proposed, as a more realistic and feasible way of tackling the problem, that the House should institute a process of systematic sift of negative instruments within Parliament. The possibility of using the existing Joint Committee on Statutory Instruments (JCSI) for this purpose was considered and ruled out, on the grounds that the sift would involve the application of political judgement and have a direct bearing on the business of the Commons, and was therefore not an appropriate task for a Joint Committee; that it would be a mistake to mix up the politics and the legal vires of instruments (the latter being the special concern of the JCSI); and that the sift would require a different set of advisers with different expertise.[26] Our predecessors also considered the possibility of requiring departmental select committees to examine instruments made by the departments which they shadow. This option was also ruled out, largely on practical grounds (the workload involved would vary dramatically between committee and committee, and from week to week within each committee, whilst the level of enthusiasm for such work on the part of Members might also vary considerably between committees). The Liaison Committee, comprising chairmen of departmental and other select committees, endorsed the Procedure Committee's rejection of this option, whilst urging that departmental select committees should have the opportunity of making an input into the sifting process.[27]

14. The 1996 report concluded that the most satisfactory way forward would be for the House to establish a single 'Sifting Committee' to consider and assess all SIs laid before Parliament. The committee would have power to call for further information from government departments where necessary. Its key task would be to make recommendations on which negative instruments merited debate. The recommendations would be put to the House by the chairman of the committee in the form of a motion which could be opposed and indeed defeated (thus enabling the Government to retain its ultimate control of the process).[28] The committee would also have powers to identify affirmative instruments which did not merit debate, and on which the question could be put forthwith unless at least six Members had earlier indicated they wished for a debate.[29] In order to allow a reasonable time for scrutiny, the report recommended that praying time against negative instruments should be extended from 40 to 60 days (this would require amendment of the Statutory Instruments Act 1946).[30] The Sifting Committee would require specialist staff back-up.[31]

15. The 1996 report also recommended that reference of a negative instrument to committee should be permitted to be moved by a Member where a prayer against it had been signed by at least 20 Members, with the ensuing Question being decided on a simple majority;[32] and that minor affirmatives of "broadly similar subject matter" should be grouped together for debate.[33]

16. A further criticism of the existing system is that debate on instruments in committee is meaningless because it does not take place on a substantive motion. If a Delegated Legislation Committee votes against the motion, "That the Committee has considered the instrument", the Chairman's report to the House is couched in the same terms as if the motion had been agreed to, and no procedural consequences follow from the Committee's vote.

17. The 1996 report recommended that motions in DL Committee should be substantive and amendable, and that where the Government's motion is defeated there should be up to an hour's further debate on the Floor. It also proposed that aspects of European Standing Committee procedure should be adopted for DL Committees, in particular that proceedings should begin with a Ministerial statement and questions, and that debate should last for up to two and a half hours, rather than one and a half as at present.

18. The 1996 report considered the question of whether statutory instruments themselves should be amendable during their passage. At present instruments cannot be amended unless the parent legislation allows for it, and virtually no legislation currently in force so allows.[34] The Committee concluded that the complications that would ensue from any change in this position would greatly outweigh any likely benefits.[35]

19. The report also looked at the existing differentiation between affirmatives and negatives in terms of the time allocated for debate when taken on the Floor. Under standing orders, affirmatives receive up to an hour and a half's debate without restriction, whilst negatives receive an hour and a half's debate subject to the restriction that debate must be concluded at 11.30 pm, even when it has commenced significantly after 10 pm (as may be the case if divisions have been held at 10 pm). The report concluded that this differentiation was illogical and that standing orders should be amended to repeal the 11.30 pm cut-off on debates on negative instruments.[36]

20. The existing system of scrutiny has also been criticised for containing no provision for a higher level of scrutiny for a small number of very complex SIs. The 1996 Committee proposed a new category of "super-affirmatives", whereby proposals for draft Orders would be laid for pre-legislative scrutiny by the relevant departmental select committee. This would be an adaptation of the existing procedure for considering draft Deregulation proposals.

21. The 1996 report contained a number of further recommendations. The most important of these was that a standing order should be passed to provide that no decision on a statutory instrument should be made by the House until the instrument had been considered by the Joint Committee on Statutory Instruments.[37] A similar standing order already exists in the House of Lords. The report pointed out that it would always be open to the House to override the standing order by resolution if the Government could persuade it that this was justified in a particular case. This recommendation to create a 'scrutiny reserve' has been strongly supported by the Chairman and members of the present JCSI.[38]

22. Other recommendations in the 1996 report related to such matters as improved documentation and identification of documents. A full list of the report's recommendations is given in the Annex to this report.[39]

Developments since 1996

23. We have considered whether developments since publication of the 1996 report have affected the validity of its conclusions.

Statistical Trends

24. Printed with the report was a memorandum from the then Clerk of the House containing statistics on the numbers of statutory instruments made since 1950, and the numbers laid before Parliament under negative and affirmative procedure since 1980, with details of whether they were considered on the Floor or in committee.[40] On the basis of this information, our predecessors concluded that "the volume of delegated legislation has undoubtedly grown in recent years". They pointed out that the number of instruments subject to parliamentary procedure had grown by around 50 per cent in the 15 years to 1996, from under 1,000 a year to around 1,500 a year. The number of negative instruments had almost doubled, from around 700 in the early 1980s to over 1,300 in 1994-95.[41]

25. The present Clerk of the House has supplied us with updated versions of the statistical tables published with the 1996 report. These are set out in the evidence printed with this report.[42] They show that the overall number of instruments laid before Parliament has remained fairly steady (though with individual annual fluctuations) at about 1,500 a year. The ratio between the two categories of instrument has also remained fairly constant: 174 affirmatives and 1,245 negatives were laid before Parliament in 1998-99, as against 175 affirmatives and 1,315 negatives in 1994-95 (the last Session for which figures were given in the 1996 report).

26. Thus there has been no significant change in the numbers of instruments laid over the past four years. However, this must be seen in the context of the increase over the previous 15 years to which our predecessors drew attention. We see no reason to dissent from their overall conclusion that "there is ... too great a readiness in Parliament to delegate wide legislative powers to Ministers, and no lack of enthusiasm on their part to take such powers. The result is an excessive volume of delegated legislation."[43] The Clerk of the House described the current position as "on a high plateau in terms of numbers".[44]

27. The real change in recent years has not been in the overall number of instruments laid but in the manner of their scrutiny by Parliament. Table 3 in the Clerk of the House's evidence shows the number of instruments considered on the Floor and in committee, by Session.[45] During the period for which details were given in the previous report, from 1980-81 to 1994-95, an average of 67 affirmatives per Session were considered on the Floor as against 84 in committee. During the subsequent four years, from 1995-96 to 1998-99, the respective averages per Session were 40 on the Floor and 149 in committee. Likewise, during the earlier period an average of 15 negatives per Session were considered on the Floor as against 16 in committee, whilst during the each of the four most recent Sessions an average of 4 negatives were considered on the Floor as against 21 in committee. The statistics thus demonstrate a major shift from the Floor to committee, for both categories of instrument (this is no doubt attributable at least in part to the 'Jopling reforms', which sought to reduce the amount of business taken on the Floor); and a reduction in the overall number of negatives debated either on the Floor or in committee.

28. In our view the trends revealed by these statistics reinforce the case for the reform of the existing system of scrutiny. It is precisely the shift from the Floor to committee which has created the problem of 'trivial affirmatives': a DL Committee, with Minister, Opposition spokesman, other Members, Chairman, Clerk, Hansard reporter, doorkeeper, policeman and civil servants in attendance must assemble to consider an instrument which in earlier years would probably have been nodded through without debate on the Floor of the House. Likewise, the reduction in the overall number of negatives debated, at a time when there has been no decrease in the numbers laid or—it may confidently be assumed—in the complexity or importance of the instruments themselves, strengthens the supposition that existing arrangements for triggering debate on negatives are less than adequate.

Devolution

29. In our recent report on the procedural consequences of devolution we discussed the impact of devolution to Scotland, Wales and Northern Ireland in relation to delegated legislation.[46] We supported what we described as the Government's "pragmatic approach" to the procedures for dealing with such legislation.[47] In terms of the effect on Westminster's workload, the Government estimated that the majority of SIs made by the Secretary of State for Scotland, estimated at 250 in an average year, would be dealt with by the Scottish Parliament and would not be dealt with at Westminster; however, this reduction would be offset by instruments to amend UK legislation affected by Acts of the Scottish Parliament. In the case of Wales, the Government expected a reduction of about 50 in the instruments at present made by the Secretary of State on his own. The Clerk of the House commented that "reductions of this size would provide a welcome, though not major, lessening of the considerable burden on the JCSI, which considers some 1,700 instruments a year".[48]

30. Commenting in oral evidence in our present inquiry, the Clerk of the House told us that "I think it is too early to say whether in a purely arithmetical sense devolution is a plus or a minus but, whatever, I should be surprised if it was a big plus or even a big minus".[49]

31. The extent of any changes in the pattern and quantity of delegated legislation arising from devolution is a matter which we will continue to monitor. However, there is no reason to think at this stage that changes attributable to devolution require any re-assessment of the conclusions and recommendations in the 1996 report.

The Westminster Hall Experiment

32. Since November 1999 a Sessional experiment has been under way in holding sittings of a 'parallel Chamber' of the House meeting "in Westminster Hall" (actually the Grand Committee Room off Westminster Hall) to consider non-contentious business. All business considered in the early months of the experiment has been debated on adjournment motions. The report of the Modernisation Committee which recommended this experiment envisaged that in due course more procedurally ambitious business might be taken. This might include "taking a limited amount of legislative business ... subject to agreement through the usual channels to do so". Amongst the examples of such business cited by the Modernisation Committee was "a prayer against a statutory instrument, which might be of general interest without being controversial and which might otherwise not be debated at all".[50] The Committee's report was approved by Resolution of the House on 24 May 1999.

33. We do not wish to prejudge the assessment by the Modernisation Committee and the House itself of the success of the Westminster Hall experiment. It is too early to say either whether sittings in Westminster Hall will become a permanent feature of parliamentary life, or whether significant numbers of statutory instruments will be considered at such sittings. We confine ourselves to noting that if the Modernisation Committee's view is upheld that any such instruments will be ones "which might otherwise not be debated at all", then their being debated will not materially affect the current workload of DL Committees or the amount of time spent on SIs on the Floor of the House. Even if SIs of a kind which are currently taken in committee or on the Floor were to be transferred to Westminster Hall, we do not believe that this would constitute a "solution" to the problems relating to scrutiny of delegated legislation which our predecessors identified, or that it would weaken the case for a sifting process to assess the appropriate level of scrutiny for individual instruments; at best it would transfer the problems themselves to a new setting.

House of Lords Reform

34. The "first phase" of the Government's proposed reform of the House of Lords is now complete, with the exclusion of all but 92 of the hereditary peers from the House. In January this year the report of the Royal Commission chaired by Lord Wakeham on the next phase of Lords reform was published.[51] The report contained a section on the proposed reformed House's role in regard to scrutiny of statutory instruments. It concluded that "there is a strong case for enhanced Parliamentary scrutiny of secondary legislation. The reformed second chamber should make a strong contribution in this area."[52] It drew attention to the quality of scrutiny already carried out by the House of Lords Delegated Powers and Legislation Committee, and called for this existing strength to be built upon.[53]

35. The Royal Commission strongly endorsed the 1996 report by our predecessor committee, stating that its own "proposals are very much in line with the spirit of the Procedure Committee's report" and adding that "the two could be considered in parallel".[54]

36. The Royal Commission supported in particular the establishment of a 'sifting' mechanism, and argued that "the logical course could be to establish a Joint Sifting Committee". It pointed out that some complications would arise in practice, although it considered these would not be insuperable: "for example,

  • as with the JCSI, there would need to be a Commons-only committee to deal with statutory instruments on financial matters;

  • only members of the relevant House would be able to decide which committee of that House should be asked to scrutinise a particular statutory instrument; and

  • only the members of the relevant House would be able to decide whether to recommend a particular statutory instrument for debate in that House."[55]

The argument in favour of a Joint Committee was that it "would ensure consistency of approach between the two Houses, avoid any potential for duplication of staff effort and build on the experience of the JCSI".[56] Alternatively, and as a second-best option, the Lords might proceed to set up a Sifting Committee on its own, perhaps inviting the Delegated Powers and Deregulation Committee to take on the task.[57]

37. The Royal Commission agreed with the Procedure Committee's other key recommendations: that a new category of super-affirmatives be created; that 'praying time' be extended from 40 to 60 days; that debate in DL Committee should arise on a substantive motion; that neither House should consider an SI until the JCSI has reported on it; and that failure to approve an SI in committee should trigger an hour and a half debate on the Floor of the House.[58] Like the Procedure Committee, the Commission resisted the arguments in favour of amendable instruments: both supported on practical grounds the present position, that SIs should not be amendable once laid before Parliament.[59]

38. The Royal Commission discussed the House of Lords's powers in relation to delegated legislation, and the circumstances in which its present formal powers might actually be exercised. It noted that in 1994 the Lords had passed a resolution asserting their "unfettered freedom to vote on any subordinate legislation".[60] However, it also noted that "there has (so far) [as at January 2000] been no serious challenge since 1968 to the convention that the House of Lords does not reject statutory instruments".[61] The Royal Commission called for the Lords' formal powers to be reduced (by amendment to the Statutory Instruments Act 1946), on the understanding that the reformed House would feel free where necessary to exercise those reduced powers. The amended Act would provide for a 'suspensory veto': specifically, that where the Lords voted against a draft instrument, the draft should nevertheless be deemed to be approved if the Commons subsequently gave (or re-affirmed) its approval within three months; and that where the Lords voted to annul an instrument, the annulment should not take effect for three months and could be overridden by a resolution of the Commons. Thus the operation of the reformed second chamber would reflect the pre-eminence of the House of Commons.[62]

39. In one respect events have already overtaken the Royal Commission's analysis. On 22 February 2000, for the first time since 1968, the House of Lords disregarded its "convention that [it] does not reject statutory instruments", by voting against the Greater London Authority Order 2000, and by approving a prayer that the Greater London Authority Election Rules 2000 be annulled.

40. We very much welcome the Royal Commission's support for the recommendations in the 1996 report. We note that the Lords vote on 22 February is further evidence that that House, as it evolves into a new role, is likely to give increasing attention to the scrutiny of statutory instruments. In our view this reinforces the Royal Commission's arguments for improving the quality of scrutiny given by both Houses.

41. With regard to the Royal Commission's proposal that the sifting of SIs should be entrusted to a Joint Committee, we consider that this might be a sensible way of avoiding duplication of effort, but measures would need to be taken to ensure that recommendations relating to Commons business were taken by the Commons members of any such committee alone.

Other Procedural Developments

42. Since 1996 there have been significant developments in the way the House of Commons operates. The Modernisation Committee has encouraged a greater emphasis on pre-legislative scrutiny of primary legislation, by way of draft bills referred to select or joint committees; and the House has been making greater use of Second Reading Committees and Special Standing Committees to examine bills once introduced.

43. Of equal, perhaps even greater, significance for our present purposes has been the extent to which other, permanent committees both of the Commons and the Lords have been developing techniques of scrutiny in recent years. Several deserve to be highlighted.

44. The House of Lords Select Committee on Delegated Powers and Deregulation was set up (as the Select Committee on Delegated Powers) on an experimental basis in 1992-93, and since 1993-94 has been routinely re-appointed on a sessional basis. In 1994 it was given the additional role of scrutinising deregulation proposals. Its job in relation to bills is "to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny". In respect of each bill, the Committee works to a tight timetable, usually publishing a report within three weeks of First Reading. As will have been seen from the order of reference, the Committee's concern is not with the merits of bills but with the justification for and appropriateness of the secondary powers granted by them. In a recent report on its own activities, the Committee commented that it "operates in a non-partisan way" and noted that "we have never needed to divide in the seven sessions of our existence"[63]. It added that when it had advised the House that bills should be amended, this advice had "almost always been accepted by the Government and the House".[64] The Government has undertaken to respond quickly to the Committee's reports, if practicable.[65]

45. In the Commons, the Deregulation Committee was first set up in 1994, to consider proposals for orders and draft Orders laid under the Deregulation and Contracting Out Act 1994. In each case the Committee conducts its examination both at the pre-legislative stage (proposals for orders) and, if it is reached, the legislative stage (draft Orders). Within a fixed timetable the Committee can take written or oral evidence, and report to the House its opinion on whether or not the proposal should proceed or the draft Order be approved. What happens to draft Orders in the House depends on the nature of the Committee's report: if it has reported unanimously that the draft Order should be approved, a motion to that effect is put in the House and the Question put forthwith; if it has agreed on Division that the draft Order should be approved, a motion is moved and the Question put after a maximum of one and a half hours' debate; and if it has recommended that the draft Order should not be approved, the Government may move a motion to disagree with the Committee's report on which the Question can be put after a maximum of 3 hours' debate, with the Question on the draft Order put forthwith if that motion is agreed to.

46. Our predecessors in their 1996 report commented on the Deregulation Committee as follows:

    "It should be recalled from the outset that Deregulation Orders are peculiar in that they all involve amendment of primary legislation, which would require further primary legislation to amend it, were it not for the terms of the Deregulation and Contracting Out Act 1994 and the parallel establishment of the Deregulation Committee with its special powers. The degree of scrutiny given by the Committee has demanded commitment of substantial resources, which could not conceivably be extended even to all affirmative orders. It is however in our view significant that the Committee has operated smoothly and effectively; that it has used its powers to persuade government to accept nearly all the amendments it has sought; that it and its House of Lords counterpart have effectively killed off one proposal; and that the end result to date is that 17 draft Orders have been agreed to by the House without any debate, but in the full confidence that they are generally acceptable."[66]

47. The present Chairman of the Deregulation Committee, Mr Peter L. Pike, argued in his written submission that the deregulation procedure has the benefit of allowing public access and giving backbenchers a legislative role, that it is conducted in a bipartisan spirit, and that it need not require much time on the Floor. He urged that "the techniques of the deregulation procedure could and should be extended to other delegated legislation".[67]

48. The European Scrutiny Committee (until 1998 the European Legislation Committee) is charged with the task of considering a range of EU documents, as defined in Standing Order No. 143. These include EU Regulations, Directives, Decisions of the Council, budgetary documents, Commission proposals, reports and recommendations, documents submitted to the European Central Bank, various inter-governmental proposals, and reports of the Court of Auditors. About 1,000 EU documents a year are deposited in Parliament for scrutiny. The Committee's functions are to assess the political and/or legal importance of these documents and decide which merit further scrutiny, either in European Standing Committee or on the Floor; to report in detail on each document the Committee considers important (some 475 a year), taking written and oral evidence if necessary; to monitor business in the Council of Ministers and the negotiating position of UK Ministers; to review EU legal, procedural and institutional developments which may have implications for the UK and the House; and to police the scrutiny system.

49. When a document is referred by the Committee to one of the three European Standing Committees, that committee will meet to hear a Government Minister make a statement and answer questions put by Members for up to 1 hour (extendable by a further 30 minutes at the Chairman's discretion); this is followed by a debate on an amendable motion for up to a further 1 hour 30 minutes. The Chairman reports to the House any resolution to which the committee has come, or that it has come to no resolution. A Government motion couched in similar terms is usually moved in the House a few days later; the Question on this is put forthwith.

50. Some aspects of this European scrutiny process have potential implications for the House's consideration of delegated legislation. First, the European Scrutiny Committee acts as a 'filter' on behalf of the House. It assesses a large number of documents and reaches judgements on whether they merit further debate, either on the Floor of the House or in one of the European Standing Committees. This role would be similar to that envisaged in the 1996 report for the Sifting Committee on delegated legislation. The European Scrutiny Committee performs this role with the assistance of a comparatively large complement of staff and advisers. Second, the 1996 report recommended that certain aspects of European Standing Committee procedure be transferred to DL committees—in particular, beginning proceedings with a statement and questions, allowing debate on a substantive amendable motion, and extending the period of debate to two and a half hours from the present one and a half.

51. The 1996 report commented that "the European Legislation Committee and the Deregulation Committee have demonstrated that scrutiny by committees can work, and can engage Members' attention and commitment."[68] We have taken evidence from the Chairman of both Committees, and are happy to endorse that view. The activities of the European Scrutiny Committee, European Standing Committees, the Deregulation Committee and the House of Lords Delegated Powers and Deregulation Committee have continued to develop during the four years since our predecessors reported, and form a valuable contribution to the effectiveness of Parliament. In particular, it has been demonstrated that committees working within the Westminster tradition can successfully develop modes of scrutiny involving the sifting of complex documents, the targeted use of specialist staff resources, the maintenance where appropriate of traditions of non-partisanship, and the holding of Ministers to account in public committee meetings through question-and-answer sessions as well as through debate on amendable and substantive motions. They have also demonstrated the ability of select committees, appropriately resourced, to combine the examination of technical detail which is characteristic of the Joint Committee on Statutory Instruments with the exercise of political judgement. In short, almost every element of the 1996 report's proposed reforms in the field of delegated legislation has been pioneered in one or other of these committees and shown to be eminently workable.

Conclusions

52. The package of proposals first put forward in 1996, which we endorse, was deliberately designed to be realistic, not Utopian. Taken as a whole, the proposals recognise the constraints imposed both by the Government's need to make progress with its legislative programme and the House's wish that minor business should not take up valuable time on the Floor. We recognise that it is in the nature of secondary legislation that it should receive less protracted and intensive scrutiny than primary legislation.

53. Nonetheless, the existing system of scrutinising delegated legislation is urgently in need of reform. We concur with our predecessors' description of that system as "palpably unsatisfactory".[69] Some aspects of the system—for instance, the frequency with which DL Committees have to be summoned to consider instruments which no-one has any interest in discussing, or the fact that the only vote allowable in committee has no procedural consequences—can only be described as absurd, and tending to bring the House into disrepute. The failures of the current system are cast into even starker relief by the recent moves, which we welcome, to modernise the House's scrutiny of primary legislation and other aspects of the House's work. In our view this renders the task of modernising scrutiny of delegated legislation even more pressing. We endorse the package of proposals put forward in the 1996 report. We have summarised the recommendations in paragraphs 13 to 22 above, and set them out in full in the Annex. The recommendations are aimed not at increasing the burden on the House but, by means of the sifting mechanism, at targeting the House's existing resources more effectively. As several of our witnesses pointed out, they do not represent a radical departure from the existing procedures of the House but rather seek to build on them (in particular, drawing on experience with the European Scrutiny Committee, European Standing Committees, the Deregulation procedure and the role of the JCSI).

54. Our inquiry has raised a number of major issues relating to Parliament's treatment of delegated legislation. Some of these remain to be explored more fully. For instance, the potential role of departmental select committees in the scrutiny of such legislation should be looked at in more detail. We may wish to return to this subject, along with others, following publication of the Liaison Committee's forthcoming report on the powers and functions of select committees. In addition, we propose to examine the Government's use of its powers under section 82 of the Welfare Reform and Pensions Act 1999 to place a report before the House seeking approval of expenditure on new services in advance of Royal Assent to the bill creating those services. The Social Security Committee has recently reported adversely on the Government's first proposed use of these powers, and has asked the Procedure Committee to investigate the way in which this new delegated power should be exercised in future.[70]

55. In the interim, however, we believe that the most important thing is to make rapid progress in implementing the 1996 proposals.

56. In two respects those proposals, as originally advanced, would require primary legislation: (1) in order to extend praying time from 40 to 60 days, and (2) to establish a system of "super-affirmatives". We wish to make clear that, though we are fully supportive of both proposals, we do not believe that the implementation of the other, very important, changes which our predecessors proposed, and which we endorse, should be delayed while time is found for appropriate bills to be brought forward. With regard to praying time, we believe that experience in operating the new system for sifting SIs would in any case rapidly demonstrate the urgent need for such a bill.

57. With regard to super-affirmatives, we note that there is no reason for the Government to await primary legislation before initiating a "super-affirmative" procedure, at least on experimental lines: just as the fairly widespread practice of presenting Government bills in draft has developed ad hoc, so it would be open now to individual Government departments to present to Parliament proposals for particularly complex or significant affirmative Orders (or, indeed, of instruments formally subject only to the negative procedure), with an indication of their intention to proceed with the formal instrument after an appropriate interval. It would be a relatively straightforward matter for the House to adopt temporary Standing Orders for the reference of such proposals for statutory instruments either to the relevant departmental select committee, or to the Deregulation Committee. An experimental arrangement on these lines would enable practical experience to be gained of how a permanent system for "super-affirmatives" might work, and might ensure that any subsequent provisions in primary legislation were satisfactorily drafted. We recommend that such an experiment be conducted.

58. We support our predecessors' recommendation (never implemented) that there should be a full day's debate on those proposals.[71] Much of the time of Members of the House is taken up with dealing with delegated legislation: it is clearly right and proper that opportunity should be given for the House to debate proposed changes to the system of such legislation.

59. The written and oral evidence we have received supported the 1996 proposals strongly. We note in particular the comment by the Chairman of Ways and Means, expressing the "overwhelming view" of the Chairmen's Panel in support of a sifting mechanism, that the "modernisation ...of one of the more unsatisfactory procedures of the House ... is very definitely long overdue".[72] The proposals have now been endorsed by the Procedure Committee under both a Conservative and a Labour Administration, as well as by the Royal Commission on House of Lords Reform and by the Chairman's Panel in the House of Commons. We believe they represent a significant contribution to the process of modernising Parliament, and we press the Government to accept them as a matter of urgency.


16   Fourth Report of 1995-96, Delegated Legislation (HC 152). Back

17   For full details of witnesses, see the list on p xxii below. Back

18   Mr Bill Proctor and Mr Robert Rogers. Back

19   For a list of memoranda received, see p xxiii below. Back

20   For a history of parliamentary control of delegated legislation, see the 1996 report, para 4, and the references there cited. Back

21   This and the following paragraph describe the general practice in relation to statutory instruments. Standing orders allow for variations in this practice: for instance, instruments may be referred to the Scottish or Northern Ireland Grand Committees (S.O. Nos. 98, 115); and debate in committee can extend to two and a half hours in the case of an instrument relating exclusively to Northern Ireland (S.O. No. 118). Back

22   149 in DL Committee and one in the Northern Ireland Grand Committee (pursuant to S.O. No. 115). Back

23   Sessional Return, 1998-99 (HC 1, 1999-2000), p 54. Back

24   Q128. Back

25   HC 152, 1995-96, para 8. Back

26   Ibid., para 29. Back

27   Ibid., paras 30-32. Back

28   Ibid., paras 33-37. Back

29   Ibid., paras 38-41. Back

30   Ibid., paras 18 and 34. Back

31   Ibid., para 34. Back

32   Ibid., para 27. Back

33   Ibid., para 40. Back

34   Rare exceptions include the Census Act 1920. Back

35   Ibid., para 51. Back

36   Ibid., para 42. Back

37   Ibid., para 20. Back

38   Ev p 1. Back

39   P xx. Back

40   HC 152, 1995-96, pp 42-49. Back

41   Ibid., para 10. Back

42   Ev pp 26-27. Back

43   HC 152, 1995-96, para 14. Back

44   Q128. Back

45   See ev p 27. Back

46   Procedure Committee, Fourth Report of 1998-99, The Procedural Consequences of Devolution (HC 185), paras 33 to 35. Back

47   Ibid., para 33. Back

48   Ibid., p 123. Back

49   Q135. Back

50   Select Committee on Modernisation of the House of Commons, Second Report of 1998-99, Sittings of the House in Westminster Hall (HC 194), para 33. Back

51   Royal Commission on the Reform of the House of Lords, A House for the Future (Cm. 4534). Back

52   Ibid., para 7.6. Back

53   Ibid., paras 4.44-45, 7.16 and 7.17. Back

54   Ibid., para 7.16. Back

55   Ibid., paras 7.23-24. Back

56   Ibid., para 7.25. Back

57   Ibid., para 7.26. Back

58   Ibid., paras 7.15. Back

59   Ibid., para 7.29. Back

60   Ibid., para 7.11, citing House of Lords Official Report, 20 October 1994. Back

61   Ibid., para 7.11. Back

62   Ibid., para 7.37. Back

63   House of Lords Select Committee on Delegated Powers and Deregulation, Twenty-ninth Report of 1998-99, Special Report for Session 1998-99: The Committee's Work (HL 112), para 9. Back

64   Ibid., para 18. Back

65   Ibid., paras 44-46. Back

66   HC 152 of 1995-96, para 22. Back

67   Ibid., p 36. Back

68   Ibid., para 22. Back

69   Ibid., para 1. Back

70   Social Security Committee, First Report of 1999-2000, Power to Incur Expenditure under Section 82 of the Welfare Reform and Pensions Act 1999: New Information Technology System for the Child Support Agency (HC 180), para 16. Back

71   HC 152, 1995-96, para 1. Back

72   Ev p 55. Back


 
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