Standing Order procedures in the case of disagreement
22. Standing Order No. 18 (Consideration of draft regulatory reform orders) provides a mechanism for debate in the House to decide cases in which agreement between the Committees[14] and the Government cannot be reached. This mechanism was not required to be used in respect of any draft deregulation order brought forward under the old Deregulation and Contracting Out Act. The Government's response to the final report of our predecessor Deregulation Committee reaffirmed that the Government would continue to aspire to unanimity with the Committees on particular regulatory reform proposals.[15] However, it nevertheless went on to argue that there may occasionally be cases where the Government disagreed with a particular recommendation by the Committee and, after failing to negotiate a mutually acceptable solution, considered that the matter should be put to the House for debate and decision under Standing Order No. 18(2).
- In our First Special Report of this Session, we acknowledged that the House, by way of Standing Order No. 18, had provided for procedures to be used in the event of disagreement, and that there might be cases where it was appropriate that they be invoked.[16] However, given the Government's undertaking "not to force orders through in the face of opposition from the Committee",[17] we recommended that the Government provide for a free vote in such circumstances, arguing "that way the arguments could be tested and the House come to a decision without any suggestion that the Government was forcing an Order through by using its Parliamentary majority."[18]
- In its most recent memorandum, the Government appears to moderate its earlier position. The memorandum states "the Government was of the opinion that the Standing Order procedure could usefully have been used to resolve impasse. But the prospect seems so unlikely as not to be worth providing for."[19] Later, it says "the Government is happy to pledge that these procedures would only be used in the most extreme circumstances."[20]
- We are surprised that the Government has taken this view, given the acknowledgement in our First Special Report that the procedures existed and might well need to be used. We would of course prefer that disagreements between ourselves and the Government should occur only very rarely, and preferably not at all, and we welcome the Government's commitment to attempting to resolve any disagreement which might arise.[21] Nevertheless, as the Government notes, if disagreements are not resolved, a beneficial reform may be sacrificed,[22] and in certain circumstances the best way to resolve any disagreement might be to go to the House as a whole.
- Notwithstanding the Government's assurance that the procedures would be used only in the most exceptional of circumstances, we are disappointed that our recommendation that the Government pledge to allow a free vote on any motion under Standing Order No. 18(2) was rejected. We continue to believe that a free vote would be appropriate in these circumstances. At the very least, the freedom of Committee members not to vote against their own recommendation should be preserved. Nevertheless we welcome the Government's undertaking to provide the House with a document setting out its reasons for disagreeing with an aspect of the Committee's report so that Members could begin to consider the arguments before the debate itself.[23]
Scrutiny arrangements
27. The Government memorandum comments:
The Government notes that the Act adopts a one-size-fits-all approach. This was clearly right for deregulation orders that tended to be relatively small and limited in scope. In developing the Bill, the Government hoped that the superaffirmative procedure could be used for both small and large proposals. However, the Government considers that there may be circumstances where the procedures, taken as a whole, are too burdensome. For example, it may be that an expedited procedure would be appropriate for those that are simple, uncomplicated and command widespread support. It is our experience that some Departments are put off using RROs because of the time-scales and bureaucracy involved.
The Government fully accepts that the Committees have to work within the framework provided by the Act, and that any such changes to the Act would need to be taken forward by way of a Bill. The Government will keep under review whether this rigorous and protracted scrutiny is appropriate for all proposals. It may be that the Committees have their own ideas as to the ways in which the process and the legislation could be improved, and the Government would welcome the opportunity of debating them with the Committee.[24]
- We begin from the position that what the Government describes as "rigorous and protracted scrutiny" leads to better legislation, and we believe that experience of the scrutiny of regulatory reform orders, and of deregulation orders before them, bears out this view. We note that the issue of the appropriate length of time which should be allowed for Parliamentary scrutiny of proposals was discussed in some detail during consultation on the future of the deregulation procedure.[25] The conclusion which was reached was that the original period of 60 days, as was originally provided in the Deregulation and Contracting Out Act 1994, was appropriate. We have seen no evidence that a period of less than 60 days would be appropriate. In our experience, even the simplest and most widely supported regulatory reform proposals have not required any less a degree of scrutiny than did the proposals brought forward under the old Act.
- We believe that it is too early in the life of the new Act, and that too few proposals have been taken through the procedure, for it to be appropriate to begin to suggest how the procedure might be altered. We suggest that any significant change in the current scrutiny arrangements would be impractical, because of the practical problems inherent in having to decide case-by-case on the appropriate procedures to be followed in the case of any particular regulatory reform proposal. Nevertheless, if in due course the Government comes up with any practical suggestions, we would be pleased to consider them. In the meantime, we believe that the regulatory reform procedure should pose few difficulties to those Government Departments ready to prepare and plan properly for the changes they wish to implement.
Regulatory reform and the National Assembly for Wales
30. The Government's memorandum draws attention to the requirement for the National Assembly for Wales to indicate its consent to a regulatory reform order which removes or modifies any of its functions before the order can be made.[26] The emerging procedural arrangement is that the Assembly indicates its consent, where needed, before a draft order is laid for second stage scrutiny. However, the Government memorandum discusses the possibility that, after the Committees have reported on a proposal, the Assembly plenary session could withhold its consent, or attach conditions to its consent. If that were to happen, the memorandum says, the Government would need to consider carefully whether it could proceed with the RRO. It might need either to re-consult or to re-table the order or, at worst, to drop it or confine it to England only. "That raises the prospect," continues the memorandum, "of disappointment for consultees whose expectations had been raised and of criticism from the Committees whose time and energies would have been fruitless."[27]
- The current arrangements for requesting the Assembly's consent appear to us to be sensible. We are also pleased to note that the Government suggests that "the Welsh Assembly Government will have been consulted on the detail at much earlier stages of policy development."[28] We expect that such consultation will generally prove sufficient to resolve any differences there may be between the approach which the Department concerned wishes to take in any particular instance, and that which the Welsh Assembly may wish to take in respect of Wales. Nevertheless, in the spirit of the Act and of the wider devolution settlement, we acknowledge the possibility that the Assembly may express a different view at a later stage, and that we may be required to reconsider a proposal as a consequence. The appropriate way forward in any such circumstances is probably best determined on an ad hoc basis, as and when the situation arises.
Disapplication of section 1(4) of the Regulatory Reform Act
32. The Government memorandum drew particular attention to clause 2(8) of the Education Bill, which purported to enable the Secretary of State to use the regulatory reform procedure to extend pilot projects or experiments begun under powers contained elsewhere in clause 2 of the Bill.[29] It would do so by disapplying section 1(4) of the Regulatory Reform Act, which prevents the reform by means of an RRO of any provision of an Act which has been substantively amended within the previous two years. The effect of clause 2(8) was that the Government could put in place a temporary scheme, and subsequently use the Regulatory Reform Act procedure to prolong it, or make it permanent, within two years. Without this provision, the Government would, if it were not prepared to wait for two years, have no option but to proceed by way of primary legislation.
- The memorandum notes that "the Government considers that disapplication [of section 1(4)] is only appropriate in special circumstances - for example, the justification in this instance is that the 'power to innovate':
- acts as a pilot for the follow-on RRO which would otherwise not be able to be [made] for 2 years; and
- is subject to the safeguard of a sunset clause".[30]
The memorandum continues, "Any proposal for disapplication will, of course, require careful co-ordination in order to ensure that the disapplication is framed appropriately."[31]
- Our counterparts on the House of Lords Delegated Powers and Regulatory Reform Committee, who have the task of considering all delegated powers in Bills, did not object to this particular provision, but said in their Report, "we would not envisage that such derogations should be a regular feature of legislation."[32]
- For our part, bearing in mind the conclusions and recommendations of two Reports of the Procedure Committee on Delegated Legislation,[33] we suggest that the Government might more appropriately consider incorporating more widespread use of the "superaffirmative" procedure[34] into legislation in such circumstances, rather than bending the regulatory reform procedure to uses for which it was not originally intended. The House could then consider whether any proposals brought forward might most appropriately be considered by ourselves, by the relevant departmental select committee, by an ad hoc Committee, or by some combination of the three.
- We have more sympathy, however, with the Government's aims in respect of legislation which may have to be amended whilst a regulatory reform proposal is still in the planning stages.[35] The problem the Government faces is that necessary amendments may have to be made to Acts of Parliament which are intended to be the subject of future, more wide-ranging reform by means of a regulatory reform order. Such amendments may mean that the proposed RRO falls foul of section 1(4) of the Regulatory Reform Act, thereby potentially delaying its introduction for two years.
- Disapplication of section 1(4) of the Regulatory Reform Act would be one way to solve this problem. The Government memorandum notes that it "considers ... that disapplication may prove attractive [as a means of] drawing a 'bright line' in related Bills around the subject-matter of a proposed RRO so that there was no doubt on that count that the RRO could proceed," continuing "this may prove to be particularly the case with the larger reforms such as reform of the Civil Registration Service or of fire safety legislation."[36]
- As rehearsed in our First Report of this Session, in the context of the proposal for the Regulatory Reform (Special Occasions Licencing) Order 2001, it appears to us that Parliament's purpose in passing section 1(4) was to prevent what the Minister described as "a 'knee-jerk' reaction to amend legislation newly placed on the statute book."[37] We do not believe, therefore, that disapplication in the circumstances described above would necessarily offend against the spirit of the Regulatory Reform Act; it may in fact help ensure the speediest possible introduction of some useful reforms. We welcome, however, the Government's undertaking to inform us if such a disapplication was contemplated, and we will consider with interest the Government's arguments, and especially the comments of our counterparts on the Lords Committee, in any such case.
Generating proposals for regulatory reform orders
39. The Government's memorandum, noting the relationships that Members of Parliament have with their constituents and with representative bodies, including trades unions, businesses, local authority groupings, charities and other interest groups, suggests that "there may be scope to involve MPs fruitfully in the generation of suggestions" for further regulatory reform orders.[38]
- We believe that the primary responsibility for identifying potential regulatory reform orders must remain with the Government. Nevertheless we agree that, as the memorandum notes, the Government does not have a monopoly on suggestions for reform.[39] Ultimately, of course, it is a Minister who must take responsibility for consulting formally, drafting the instrument and explanatory material and laying before Parliament the necessary documents. However, there is certainly scope for the promotion by MPs of regulatory reform orders, just as Members of Parliament may bring forward primary legislation in the form of Private Members Bills.
- We would strongly encourage any of our colleagues who thinks that he or she has identified a reform which might be suitable for implementation by means of a regulatory reform order to act as the Government has suggested, in gathering the initial evidence and lobbying the responsible Minister for action. As the regulatory reform procedure becomes established, we look forward to seeing many more proposals generated, not only by Government and Members of Parliament (including select committees) but also by those outside interest groups who so often criticise the effect of overly burdensome legislation.[40]
14 That is, this Committee and our counterparts in the House of Lords, the Delegated Powers and Regulatory Reform Committee. Back
15 HC 389, Appendix, para 37. Back
16 HC 389, para 20. Back
17 HC 389, Appendix, para 37 and footnote. Back
18 HC 389, para 21. Back
19 Para 2.32. Back
20 Para 2.33. Back
21 Second Special Report, op cit, Q1, Q28. Back
22 ibid, para 2.32. Back
23 ibid, para 2.34. Back
24 Paras 4.16-4.17. Back
25 First Special Report of the Deregulation Committee, Session 1998-9 (HC 324), The Future of the Deregulation Procedure, paras 50-52; First Special Report of the Deregulation Committee, Session 1999-2000, Government Response to the Deregulation Committee's First Special Report, Session 1998-1999, on The Future of the Deregulation Procedure (HC 177), paras 49-51. Back
26 Regulatory Reform Act, section 1(5). Back
27 Para 4.26. Back
28 ibid. Back
29 Para 4.46. Clause 2(8) of the Bill is now section 2(9) of the Education Act 2002, which reads as follows:
"(9) The effect of an order under this section is to be disregarded in determining for the purposes of section 1 of the Regulatory Reform Act 2001 (c. 6) (power by order to make provision reforming law which imposes burdens) whether any provision of an Act falls within subsection (4)(b) of that section (provisions amended by subordinate legislation within previous two years)."
Back
30 Para 4.47. Back
31 Para 4.48. Back
32 Fourteenth Report of the Delegated Powers and Regulatory Reform Committee, HL 91, para 6 (cited in Government memorandum, para 4.46). Back
33 First Report, Session 1999-2000 (HC 48), para 57; Fourth Report, Session 1995-96 (HC 152), para 9. Back
34 The term "superaffirmative" refers to the procedure whereby Parliament has the opportunity to comment on a proposal for a statutory instrument before the instrument itself is brought forward for Parliamentary approval. The regulatory reform procedure is a particular form of the superaffirmative procedure. Back
35 Para 4.48. Back
36 ibid. Back
37 HC 265, para 55. Back
38 Para 4.49. Back
39 ibid. Back
40 Second Special Report, op cit, Q1, Q10, Q11. Back
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