SUPER-AFFIRMATIVE PROCEDURE: LEGISLATING
FOR CONSULTATION AND SCRUTINY
118. As already noted, one of the disadvantages of
secondary legislation is that Parliament cannot normally amend
it, but only accept or reject it outright. One of the notable
advantages of the super-affirmative procedure, which resembles
the procedure under the Regulatory Reform Act 2001 and has been
used, for example, in section 9 of the Local Government Act 2000,
is that it allows for changes to be made during parliamentary
scrutiny and in response to this:
The ability to make changes (minor or otherwise)
to the draft order while it is being scrutinised and in response
to the scrutiny is a key feature of the order-making power, which
is not available to statutory instruments dealt with in the usual
way.[140]
Another of the advantages of this procedure is that
it allows for in-built consultation of precisely the sort that
we believe to be essential for any major changes to the schemes.
In order to
ensure that future major changes to the schemes involve proper
consultation, and to ensure that Parliament is able to suggest
changes to the schemes themselves, we recommend that major changes
to the schemes in the future should be by statutory instrument
subject to super-affirmative procedure, allowing for consultation
both with interested groups and with Parliament, before final
secondary legislation is presented to Parliament for approval.
Preparation for the passage of
a bill
119. We have seen framework documents for the new
pension and compensation schemes, but not for the proposed early
departure scheme. We
regard it as essential that a framework document for the new Armed
Forces Early Departure Scheme should be available to Members before
second reading of the bill, as well as the framework documents
already provided to us.
120. In any case, these framework documents do not
provide the level of detail that will be necessary for the scheme
rules, and for any secondary legislation. As the Forces' Pension
Society explains, "until the rules of the new scheme have
been written and promulgated it is not possible to define the
inconsistencies and future stumbling blocks".[141]
If the detail of the scheme
rules is not available before second reading of the bill, this
makes it all the more important that Parliament should have the
chance to examine and question Ministers on the detail of these
rules when secondary legislation is made.
136 Ev 18 Back
137
Q 68 Back
138
HC (2001-02) 666, para 14 Back
139
Q 34 Back
140
Regulatory Reform Act 2001, Explanatory Notes, paragraph 15. Back
141
Ev 30 Back