Overall conclusions on text of
Part 1
74. We have considered Part 1 of the Bill from the
perspective of our current responsibilities and, while we expect
that other Committees with different terms of reference may also
wish to comment on particular constitutional and procedural aspects
of the Bill, we share the Government's overall objective of wishing
to remove the burden of unnecessary regulation. Nonetheless, we
observe that the recommendations and issues for consideration
highlighted above arise as a result of the Government's assessment
that streamlining legislative procedure is of major importance
and that constraints can be left to be covered by the relevant
Minister's undertaking. The Cabinet Office's Final Regulatory
Impact Assessment in effect addresses four possibilities: doing
nothing; altering parliamentary procedures alone; adding extras
to the 2001 Act; and providing for radical change by conferring
on Ministers a power with no outer limit on coverage, as in Part
1 of the Bill. In summary, this Special Report offers for
consideration a fifth possibility: leaving the outer limit on
coverage unspecified while identifying areas that should be off
limits, as not appropriate for delegated legislation, and also
tightening aspects of Parliamentary control. All of the recommendations
and issues highlighted for consideration in this section identify
ways in which the Bill can be amended at Committee and/or Report
Stage in a way that ought to be manageable if the principle of
the Bill is accepted by the House.
16 There is a rough constitutional symmetry in the
balance between the inconvenience of current constraints to a
government programme and the fact that Governments are regularly
voted into office with an absolute House of Commons majority but
on the basis of a minority of votes cast. Thus:
first, the need to fit Bills into
the Parliamentary timetable results first in the need for some
co-operation between government and opposition parties, and secondly
in some understanding between Commons and Lords: the interplay
between the two Houses itself provides an inhibition against ill
thought out legislation brought forward in haste.
secondly, during standing committee
and report stages any amendment within the scope of a Bill can
be put down and will be eligible for debate, without initiators
being limited to Government; that results in the assumption that
potentially difficult issues cannot be sidestepped - they have,
or at least may have, to be faced before a Bill is passed.
thirdly, the Commons scope doctrine
imposes a constraining decision on those introducing Bills - either
they need to confine its area of operation, or they risk debate
being sidetracked by the introduction of amendments in respect
of areas that they have not considered at all. Back
17
Clause 4 of the Bill provides that a power to legislate conferred
by an order under Part 1, if conferred on a Minister and not replicating
an existing power, is limited to normal affirmative and negative
statutory instrument procedure. There is however no constraint
on the conferring of a power on an official body, an individual
official, a private company or a private individual to legislate
in a way that by-passes those procedures. Back
18
HC Deb 11 January 2006 c284 Back
19
It is of course possible, if the undertaking not to enact controversial
measures given in 2001 had been ignored, that some such measures
might have been shoehorned into burden/activity reform, thus generating
super-affirmative procedure. The question whether they would then
have been accepted by a court as genuinely within powers was never
tested, but it is clear that the burden/activity concept has been
seen as a significant constraint on powers. There are - as in
2001 -a number of opinions a Minister needs to form before making
such orders, but those are subjective and limited only by judicial
review - see below. Back
20
Q23 Back
21
Delegated Powers and Regulatory Reform Committee, Fifteenth Report
of Session 1999-2000, HL61, para 35. Back
22
In calculating time in relation to the 21, 40 and 60 day limits
no account is to be taken of any time during which Parliament
is dissolved or prorogued or adjourned for more than 4 days (clause
17). Back
23
See Statutory Instrument Practice, Office of Public Sector
Information Back
24
Second Special Report from the Regulatory Reform Committee, Session
2003-04, HC818 Back
25
The fact that affirmative and super-affirmative procedure will
automatically call for a vote in the House does not make a veto
superfluous in this case. The difference is that it would be an
option for recommendation by the responsible Committee of either
House within the relevant period (unless the Committee's recommendation
were rejected by a resolution from that House in the same period),
and a significant factor would be whether the order was appropriate
for Committee as opposed to Bill procedure. In contrast, the eventual
vote needed to make an order in the form of the draft would be
expected to depend far more on the perceived desirability, on
balance, of the policy underlying the order. Back
26
The expression 'default rule' means a rule which the Bill would
apply automatically, but with provision for alteration in an individual
case by a method also specified in the Bill. Back