Select Committee on Procedure First Report


Letter from the Chairman of the Joint Committee on Human Rights to the Chairman of the Procedure Committee

Making of Remedial Orders

I enclose a copy of the Seventh Report from the JCHR, which was published shortly before Christmas. The report reviews the procedures for making "remedial orders" under the Human Rights Act in the light of the experience of the first one made. I am drawing it to your special attention because in it the Committee makes a number of recommendations for tightening up the procedures of the House relating to the making of these new forms of subordinate legislation. They are summarised in Annex B of the Report.

Like deregulation or regulatory reform orders, remedial orders can amend primary legislation where there was no specific power in that legislation giving Ministers power to do so by means of delegated legislation. Their special and exceptional nature, requiring some more rigorous form of parliamentary scrutiny than standard affirmative procedure, is acknowledged by the various provisions of Schedule 2 to the 1998 Act requiring proposals for draft remedial orders and draft or made orders to be subject to consultation, with extended periods to allow for this; and by the explicit provisions to involve the JCHR in the process of consultation and approval which are included in the standing orders of each House.

I do not think the Procedure Committee was consulted on the proposals of the 1998 Act, and although the procedure was clearly based on the deregulation procedures, it has not been carried through with quite the same degree of thoroughness into the standing orders of the Commons. In particular, the standing orders have not been changed to make any special provision for the process by which the House approves a remedial order, in contrast to the elaborate procedures which were developed for deregulation and regulatory reform orders.

The Committee believes that, because of their special nature, remedial orders should not simply be treated as being on a par with other affirmative procedure instruments, and that they should enjoy the kind of safeguards which apply to the approval of other "super-affirmative" instruments. In particular, we note that deregulation or regulatory reform orders in the Commons must be approved on the floor of the House and cannot be referred to standing committee, and that the standing orders impose different levels of procedure in consequence of different recommendations from the Deregulation and Regulatory Reform Committee as to whether the draft orders should be approved (see S.O. No. 18).

However, our suggested improvements to the standing orders relating to remedial orders are not quite as complicated as the deregulation procedure. In essence, our proposals would provide—

—  that if the JCHR so recommended, a Remedial Order (whether or not in draft) would be taken on the floor of the House rather than in standing committee (we suggested this rather than wholesale dereferral as being more convenient in cases where the proposed change to the law seemed to us wholly uncontroversial);

—  that no motion could be made to approve a Remedial Order (whether or not in draft) before the JCHR had reported to the House on it, provided that we did so within the statutory periods required (this proposal anticipates a separate proposal to reduce the delay required by the Act before parliamentary approval can be given to draft remedial orders—it is also very much in line with the constant urgings of the Procedure Committee that the standing orders should be amended to prevent other approval motions being taken before the JCSI had reported on an instrument);

—  that if the JCHR recommended against the approval of a Remedial Order (whether or not in draft), the House would first have to resolve to disagree with our recommendation (in a debate lasting no more than three hours) before it could approve the Order (by analogy with the safeguard applied to deregulation and regulatory reform orders by S.O. No. 18—which, it is worth noting, has never needed to be invoked because the threat of an adverse recommendation has always been sufficient to dissuade the Government from proceeding with a proposal) .

We also note that the standing order for the JCSI needs to be amended to exclude remedial orders from its consideration—clearly this was the intention in drafting the standing order for the JCHR, but the consequential change to the terms of reference of the JCSI has not been made.

I would be grateful if you would draw our recommendations to the attention of your Committee. While you might well feel that a formal response to my Committee's proposals is unnecessary, it would certainly be helpful if you were able to support them formally and convey that support to the Leader of the House in due course. We have, I hope helpfully, set out the proposed changes in immediately useable form in Annex B to the report. If your Committee has any detailed comments to make on them, I would be glad to hear them.

Jean Corston MP

8 January 2002

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