Select Committee on Regulatory Reform First Special Report

4  Matters for the House

Implications for Standing Orders  

75. The Bill envisages (though it does not expressly require) a two stage procedure - i.e. a first stage scrutiny period of the proposal and a second stage scrutiny of the draft order. The Bill is not explicit as to the full range of tests that the relevant committee needs to do in order for the second stage to be carried out most effectively. In respect of RROs. these details are set out in S.O. No. 141. While any revision of standing orders is a matter that will depend on the final outcome of the Bill, we have outlined some of the areas that the House may wish to consider.

REVISIONS TO STANDING ORDER NO.141

76. S.O. No.141 governs much of the work of our Committee and will need to be revised to reflect the dramatic changes to the working of our committee or, more accurately, our successor committee that will occur if the Bill is approved in its original form. For example, the Bill is likely to cause a significant increase in the volume, complexity and variety of future orders while simultaneously reducing the period for available for parliamentary scrutiny.

SCRUTINY CRITERIA

77. In revising the standing orders, the House would need to carefully consider revising the tests that the Committee will apply when scrutinising each proposal. Currently, under S.O. No. 141(6) we may report to the House on any matter arising from our consideration of regulatory reform proposals and draft orders. And in reporting on a proposal for a Regulatory Reform Order, we are required to assess each proposal against fourteen criteria. Under the Bill, as presented, three of these tests (b, k and i) will be redundant. The House may wish to consider whether replacements tests are necessary. We believe there is a case for requiring the Committee in addition to the recommendations above, to assess the validity, in respect of any proposed draft order, of any preconditions that are set out in the eventual Act which are not already covered by the remaining tests. We recommend that the Standing Orders be amended to require the responsible Committee to assess the validity, in relation to any order, of any new preconditions (for example the first precondition: that the policy objective could not be satisfactorily secured by non-legislative means).

INQUIRIES AND THE BETTER REGULATION AGENDA

78. We also envisage that our successor Committee's remit should be extended in order to scrutinise more widely the Government's progress in implementing the better regulation agenda. The Leader of the House indicated in correspondence that there was interest in widening the terms of our committee to cover the wider better regulation agenda.[27] As noted above, our current remit only allows us to report on proposals and orders and matters arising there from. The terms of reference for considering orders and undertaking enquiries related to the better regulation agenda would need to be radically revised to reflect the changed demands on the committee. In order to undertake inquiries into regulation more generally, we recommend that the Standing Orders of any successor committee also include the same powers as those granted to departmental select committees under S.O. No. 152.

SECOND STAGE OF EACH ORDER - FLOOR OF THE HOUSE

79. Given the wide range of draft legislation that may be considered under Part 1 of the Bill, and in view of our recommendation above that a veto power be provided, it may be important to give the committee charged with reporting on any draft order the flexibility under its own procedures to decide on the subsequent procedures covering approval (or otherwise) of a draft order on the floor of the House,. Otherwise we foresee a possibility that a power of veto exercisable by the relevant committee, if included in the Bill, will be used on orders that appear to be politically significant so as to reduce the risk of inadequate time being arranged for debate. We accordingly invite the House to consider whether, on any revision of Standing Orders consequent on the passing of this Bill, there should be included a power for the relevant committee to require a debate on the floor of the House prior to a vote to approve a draft order.

REVISIONS TO STANDING ORDER NO. 18

80. The procedure for handling orders, as set out in S.O. No. 18, will need to be substantively revised. There are two areas that we wish to draw special attention to.

Appropriate for Delegated legislation

81. We recommend that the relevant Committee be able to recommend that no further draft order to the same effect (or to the same effect but for modifications) should be laid within two years. [28] In our view, it is essential that the Standing Orders reflects this provision so that the committee has power to indicate its view on the merits of an order i.e. as to whether an order should be made or not and - in the case of a super-affirmative - whether it should be amended.

Debate

82. We also recommend that the current provision, as set out in S.O. No. 18(1)(b), that allows us to trigger a debate on the motion to approve the order be retained and supplemented by a further provision to allow the relevant successor committee to require a debate to be held, if (in the committee's view) a draft order is of sufficient political or legal importance.

83. This change is necessary in order to correct an inherent contradiction within the Government's proposals. As proposed, a debate on an order would be automatically arranged, for orders subject to the affirmative procedure, which of the three procedures on offer (negative, affirmative and super-affirmative) is the procedure that nominally provides the medium level of scrutiny. However, for those orders deemed by the Minister to warrant the highest level of scrutiny applied to orders, the super-affirmative procedure, it would be rare for debates to held.. Therefore, under the proposals, a debate on a politically and legally important order could potentially be avoided simply by the Minister recommending the super-affirmative procedure be applied. Unless there is a division in the relevant Committee, there will be not required debate. It is perverse that the most controversial orders following the highest level of scrutiny might not produce an opportunity for a debate, when this would be automatically required for some less important draft orders. The position becomes even more unsustainable if (as is possible) a committee unanimously agrees that an order should be approved but also believes that the House should be given an opportunity to debate the order[29]. Under these circumstances, the Committee would have to contrive an artificial division in Committee in order to trigger an automatic debate in the House. The alternative is to simply rely on the goodwill of the government to agree to arrange a debate, as happened with the Fire Safety Order. Either option is unacceptable.

84. The revisions to the Standing Orders, as recommended, would in our view remove uncertainty and would enhance the power of the committee to scrutinise the draft orders while also providing an opportunity for other Members to debate the orders, regardless of whether they had been scrutinised under the super-affirmative procedure.

Resources

85. In addition to its work on the Bill, the Government is also boosting its capacity to increase the number of orders. For example, we note that the BRE is currently advertising to recruit 50 staff, all located in London and at all levels right up to director level, to work on its Better Regulation Agenda. The prospect is that when this extra capacity is combined with the increased scope and powers provided by the Bill, the number, variety and complexity of orders will rise dramatically. A growing proportion of legislation may be made in the form of such orders, putting the scrutiny Committee under increasing pressure. The proposed cut in available time for Parliamentary scrutiny can only further exacerbate that pressure. We recommend that the resource implications of the eventual provisions of any Act for our successor committee be assessed at the earliest opportunity with a view to identifying how best the expected extra workload can be scrutinised effectively.

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27   Ev 17 Back

28   This is particularly needed in a case where the veto power recommended above is not exercised. According to the recommendation, the veto would bring in the two year moratorium as a matter of automatic consequence. Back

29   For example, see Eleventh Report from the Regulatory Reform Committee, Session 2003-04, HC 684 Back

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Prepared 6 February 2006