Examination of Witnesses (Questions 40-59)
MR JIM
MURPHY MP, KATE
JENNINGS AND
SARAH HULCOOP
7 FEBRUARY 2006
Q40 Sir Robert Smith: It is interesting
the way this 21-day rule works because, if the committee makes
its recommendation on the 21st day, does that allow the House
still to have a say?
Mr Murphy: Well, if the recommendation
would be, for example, to take it up from affirmative to super-affirmative,
that would then still give them another 39 days minimum to then
take it because, under the super-affirmative, it is up to 60 days,
so, if they made it on the 21st day and said, "We don't like
either the negative or the affirmative suggestion and we think
it should be super-affirmative", then, if my arithmetic is
right which I think it is, they have got another 39 days.
Q41 Sir Robert Smith: Where the House
could then say, "No, the committee is being too cautious
and it should just be affirmative"?
Ms Hulcoop: There is only the
21-day period in which either the House or the committee, whichever,
makes that final decision to require the higher procedure, but
it has obviously then got the additional amount of time to continue
scrutinising the order. As the Bill is currently drafted, there
is that 21-day cut-off and it would be for the House to organise
internally when it would require a committee to make its recommendations
and to allow enough time for that.
Mr Murphy: What I understand your
question to be is that, if a committee makes a recommendation
from 21 up to 60 and the Government says, "We don't fancy
that", the Government could, by another route, rely on the
will of the House. That is not where we are, it is not where we
have been and perhaps, in advance of the committee stage, we can
work on a working form of words that would offer the reassurance
that we gave previously on giving the commitment from the Government.
Certainly this Government, though again I am not seeking to be
party-political and I have not sought to be so at any point today,
would give a commitment not to do the sort of things you quite
rightly raise as a hypothetical scenario.
Q42 Sir Robert Smith: Another possibility
is that such a motion on the floor should have some kind of extra
safety hurdle similar to, say, a closure motion where you have
to have so many people there voting as well or more than a simple
majority.
Mr Murphy: I am looking for the
specific determination of parliamentary procedure and all I can
offer you is this Government's position which is that we see the
role of the Regulatory Reform Select Committee to be absolutely
crucial and we work in partnership with them. Their influence
has grown and the importance of their work has grown. It would
be an entirely retrograde step were we, as a government, to say,
"We know you have the expertise and we know that you carry
out the crucial work that you do and you do it in a bipartisan
way", if you like, "However, we are going to seek a
way to bypass you". That is not really where we are at all
and we will find a form of words. It is a reasonable point based
on a very hypothetical scenario and I will seek a way to offer
that reassurance.
Ms Jennings: In terms of the actual
wording on the face of the Bill, the logic there was very much
based on our understanding particularly in the House of Lords
where committees advise the House and, therefore, it was not for
us to say that the committee had a right of veto, as it were,
and it had to be the House that had the authority, which is I
think what the Minister is saying.
Q43 Ms Clark: Normally a statutory instrument
subject to negative procedure comes into force when it is laid
before Parliament and it remains in force unless, within 40 days,
either House resolves that it should be annulled. Now, it appears
that, under this Bill, orders subject to negative procedure cannot
come into force until the end of the 40-day period. Is that the
case?
Ms Jennings: It is the case and
the logic there is simply that it may be that the committee has
decided that the order moves up from being negative even to super-affirmative
and, if that was the case, we would be assuming that that was
because the committee wanted to make some sort of amendment to
it. Therefore, the expectation was that it would be presumptuous
to lay an order in the way that you would for a negative instrument.
Q44 Ms Clark: So, if it were a case of
urgency, proceeding by affirmative procedure need be no slower.
Is that not another argument against using negative procedure
at all for these orders?
Mr Murphy: Well, again there would
have to be public consultation and the Government would make an
assessment or the minister would make an assessment and make a
recommendation to the committee. The anticipation is that, on
negative, it would be things like lifting an administrative burden
where all the stakeholders have said that it is a commonsense
tidy-up and whereby, across party, across the private sector,
across the public sector, the voluntary sector, whatever, there
is unanimity and there is no controversy whatsoever. That is what
we would anticipate a negative procedure to be. What we are aiming
to achieve through this Bill is a proportionate sense of regulation,
and it is for the House to make the decision obviously, but the
ministers would recommend what we think is the most proportionate
parliamentary scrutiny based on the statutory public consultation
and the ministerial assessment and recommendation to the committee.
The Regulatory Reform Select Committee, I think, made a point
in its report, or it certainly has been of the view in the past,
that the current one-size-fits-all procedure is not a very effective
way to do things, so in terms of the negative, it would be administrative
tidy-ups and lifting of administrative burdens based on a consensus
and that is the rationale for it.
Q45 Mr Gauke: Just looking at the affirmative
procedure and how that works in practice, I have a couple of questions.
The first stage is to draw up the draft order and to consult upon
it and how long would you expect that process to take, the drawing-up
and consulting on the draft order before you lay it before Parliament?
Secondly, once that is done, and I understand it is there for
a minimum of 40 days before being approved by resolutions in each
House, what sort of scrutiny at a practical level is likely to
happen during this 40-day period?
Mr Murphy: In terms of constructing
an order, there is no exact science as to how long that takes;
it depends on the nature of it, it depends which departments are
involved, it depends on the size, the technicality and all sorts
of other issues. There is no sort of set timescale for drafting
and constructing an order. There is a set time-frame for the statutory
public consultation of course which is 12 weeks, whereby there
is an expectation, well, it is more than an expectation, that
the statutory consultation should conform to the 12-week minimum.
At that point, the anticipation would be that the relevant select
committees, using both their informal radar and antennae, but
also through a form of exchange of information which will be necessary
to make effective scrutiny successful, would start that process
and the relevant select committees would receive the information
that we are minded to do this, that we are now going out to statutory
public consultation and they themselves would start to begin their
deliberations. At the end of that 12 weeks and after the Government
has analysed all the responses and after the government minister
has made an assessment, again how long is that period? Again there
is not any exact science there. The select committees can continue
to seek information along with their widened terms of reference
which is important because at the moment there would be a sense
that they would discuss amongst themselves, they would seek reports,
they would get the clerk to carry out an analysis and analyse
that analysis. If, for example, and I am not sure if it is one
of the recommendations, they would have the power to carry out
their own investigations within the Better Regulation Agenda,
personally I think the scrutiny would be enhanced if we found
a way which enabled them to do that. Therefore, in terms of the
time-frame of the construction of the order, there is nothing
specific as to how long it should take, but it is a substantial
period of time, the public consultation on it is 12 weeks, and
then the time the Government takes to assess the public consultation
and then construct the final draft order for consideration, so
you have got those different stages. By the second stage, ie the
public consultation, the expectation is that the select committees
would start to be engaged in it, particularly if they had a broadened
remit in terms of reference.
Q46 Mr Gauke: In the memorandum, you
refer to the fact that, "the relevant committees would carry
out a function similar to that of other parliamentary committees
which report on statutory instruments", and there is a suggestion
there that perhaps the scrutiny will not be in respect of the
merits of a draft order, but more procedural matters. Is that
a concern that you recognise?
Mr Murphy: If that concern exists,
and I am not aware that that concern does exist, I think you would
have to approach the Regulatory Reform Select Committee to see
if they have that concern, but it is certainly not the way we
anticipate it working. The Regulatory Reform Select Committee,
as it has done, will make its own assessment on the procedure
and the content and it has to be able to do both, it is essential.
It is of less value if it only makes an assessment of the procedure
or the content; it needs to be able to do both.
Q47 Mr Gauke: Having outlined the timetable
for it, the difference in timing before the affirmative procedure
and the super-affirmative procedure at the most can be three or
four weeks and again a consultation period of 40 days and so on,
but it is fairly small. Can you imagine many orders that will
be so urgent that you would want to go down the affirmative procedure
rather than the super-affirmative procedure, given there is not
much difference between the two?
Mr Murphy: I am not sure that
urgency would be the reason as to why we went affirmative or negative
rather than super-affirmative, but the sort of threshold of controversy
would be responses to the statutory public consultation, so I
do not think that would be the driving rationale for why we went
for a shorter period rather than the more prolonged period. There
may be examples in the future—though I know we should never
speculate, but I am just about to speculate, so I hope I do not
get myself in trouble—whereby there is a pressing need for
a simplification or a lifting of an administrative burden, for
example, where the voluntary sector had said, "This was done
for a good reason. However, there is an unintended consequence
which Parliament perhaps was not aware of and, if it is not resolved
this time three months from now, the problem will become a very
real one". In those circumstances, perhaps we would work
with the Regulatory Reform Select Committee to see if there was
a common way through it, but certainly the timing and urgency
is not the driver as to whether it is negative, affirmative or
super-affirmative, but it is the policy content level of controversy
which would drive that.
Chairman: Thank you.
Q48 Annette Brooke: Still on the super-affirmative
procedure in the Bill, I understand the wording of the provisions
in the new Bill is actually slightly different from that of its
predecessor, the 2001 Act. What is actually the practical effect
of the differences?
Ms Jennings: Could you say what
specifically you are referring to?
Q49 Annette Brooke: For example, I understand
the 2001 Bill requires the Minister to have regard in particular
to any resolution or report of, or of any committee of either
House of Parliament.
Ms Hulcoop: That is in because
the 2001 Act had the super-affirmative procedure which is replicated
in our Bill as one of the options, but the affirmative procedure,
which is one of our options as well, does not have the same period
during which the resolutions or recommendations can be made—
Well, it does, but the super-affirmative procedure works by having
that period and then for the Minister having to have regard to
those and then for there to be the super-affirmative resolutions
before the order can actually be made. That is not a standard
affirmative resolution procedure.
Q50 Chairman: I think the point being
made is that the wording is slightly different.
Mr Murphy: I wonder if you are
in a position to give the specific wording you are referring to,
Chairman?
Q51 Chairman: The previous wording, I
understand, says, "In preparing a draft of an order . . .
with or without variations, to proposals in a document laid before
Parliament under section 6(1), the Minister concerned shall have
regard to any representations made during the period for Parliamentary
consideration and, in particular, to any resolution or report
of, or of any committee of, either House of Parliament with regard
to the document." The wording here is not the same. What
we are asking is, is there any practical effect of these differences
or is it just a difference in drafting?
Ms Jennings: I think it is just
a difference in drafting. I am happy to take that away and check.
Mr Murphy: We will look into that.
Q52 Chairman: I will write to you with
the wording we have picked up and would welcome your response.
Ms Jennings: We are certainly
happy to check that.
Q53 Sir Robert Smith: The scope of the
legislation which could be affected, as you say, could be quite
major legislation under this procedure, and under the current
super-affirmative procedure it is possible that if the committee
approves it then there is no debate outside the committee on the
actual order that is going through, because of the way the procedure
works. Given that you are widening the scope of the likely things
to be affected, do you think there could be some kind of procedure
whereby the committee does not have to artificially divide to
allow a debate on the floor of the House or allow a wider debate
in Parliament?
Mr Murphy: Notwithstanding what
I said earlier about seeking to provide additional reassurances,
I think the House will charge the relevant committees to carry
out this function for them, and it will ultimately be up to the
committee to decide how to deal with it. The select committees
are made up, as we know, of all sorts of different members, all
sorts of different perspectives, and if an individual or individuals
sought to make sure something was debated on the floor of the
House, they may wish to use that trigger.
Q54 Sir Robert Smith: We just wondered
whether there could not be another procedure whereby the committee
could put it for debate on the floor of the House without having
to artificially divide internally.
Mr Murphy: It is one of the things
the RRC have recommended. Again I am in danger of repeating myself
or responding in advance of the standing committee. I hope you
do not see that as a discourtesy to your Committee, it is simply
within 24 hours we are not in a position to offer specifics, and
obviously our response will be primarily to the committee which
made the recommendations.
Q55 Sir Robert Smith: Did you say earlier
you were minded to look also at the possibility of some procedure
for accepting amendments from here?
Mr Murphy: Yes, if the Committee
suggests a small tidying-up or a tweak, we will try and find a
way in which that can be enabled.
Q56 Mr Wilson: Minister, private legislation
can be amended by orders under the Bill. On page 12, paragraph
50 of your memorandum, you state that you would expect that the
statutory consultation before the introduction of the draft order
would include consultations with "the original petitioners
where they continue to be affected by the legislation" and
the relevant committees "will be able to call witnesses to
give representations where this is necessary." Does this
mean that all such orders will proceed as super-affirmatives?
Mr Murphy: My initial response
to that, and I will reflect on the specific point, would be that
if it was an area of contention, where there was not a consensus,
then we would seek to do it by super-affirmative procedure. However,
if after consultation and listening to those who are affected
it seems reasonable we can progress, I would anticipate the Minister
would suggest perhaps an affirmative procedure. Ultimately the
relevant committee charged by the House could then escalate the
level of scrutiny of course.
Q57 Mr Wilson: Could you give any examples
of amendments to private or hybrid legislation which you might
want to make using orders under this Bill?
Mr Murphy: I will provide you
with details on that.
Q58 Chairman: Do you see any restrictions
on the trigger on when you would seek to amend private legislation?
How would you define "highly controversial" in this
context? For example, if we had a rogue local authority that was
using a piece of private legislation in a way which most of us
would regard as heavy-handed and acceptable only to regulation-ridden,
form-filling, pen-pushing bureaucrats, would you see this as a
way where national government would step in and water-down the
private legislation because of the heavy-handed way it was being
interpreted, even if locally it might be popular?
Mr Murphy: That would be a dangerous
scenario to speculate on in front of your Committee today. However,
in terms of where the threshold is, we would take soundings from
the Regulatory Reform Select Committee as to where this threshold
is. Again, Chairman, it would be a part of the sort of natural
evolution of this new process to decide where the centre of gravity
has been agreed as to what is the common sense procedure to adopt
in that type of scenario. So I do not want to speculate, I am
not in a position to speculate, on the specifics but it would
be a process of evolution over quite a short period of time, I
would suggest, as to what is considered appropriate for this type
of order.
Q59 Chairman: You and your team have
obviously decided to put all of the parliamentary procedures on
the face of the Bill. Another way of doing it of course would
be to have left Parliament itself with Government guidance to
look at what procedural changes would be necessary. In any event,
these changes are going to necessitate changes to our Standing
Orders. Are you prepared to undertake to involve the Procedure
Committee in any further discussions and debates that will necessarily
be taking place in this regard?
Mr Murphy: My response to that
would be the Cabinet Office in its role is not responsible for
the Standing Orders of the House, but it is anticipated there
is an impact on Standing Orders, and in a similar way there would
be an expectation the Leader of the House would be in consultation
with the Regulatory Reform Select Committee on their terms of
reference. I think it is equally appropriate that the Leader of
the House—indeed I anticipate this—would enter into
a similar dialogue with your own Select Committee and others which
are deemed appropriate under Standing Orders.
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