3 Parliamentary scrutiny
28. It is generally recognised that the Regulatory
Reform Committee has done an excellent job in scrutinising RROs
on behalf of this House. The Minister praised its performance
on several occasions during his evidence to us.[28]
It was clearly also his assumption that draft orders under the
Bill would be scrutinised either by the Regulatory Reform Committee
or by a successor committee with a similar order of reference.
29. We have already referred to the differences between
the provisions of the Bill as currently drafted and what has been
said by Ministers about how they plan to use those provisions.
Orders under the Bill will not necessarily share the set of common
characteristics which have distinguished RROs and which are reflected
in the tests set out in paragraph (6) of Standing Order No. 141.
It is perhaps not surprising, given the common underlying purpose
of all RROs, that the Regulatory Reform Committee has built up
considerable expertise, in both its Members and its staff. If
the Government uses the powers in this Bill only in order to pursue
its better regulation agenda, the same may be true of orders made
under it.
30. But the Bill's provisions extend more widely.
Orders to implement Law Commission recommendations may share no
common characteristics with orders to improve regulation. And
in the future there is nothing in the Bill to prevent a government
bringing forward orders which have no connection with better regulation.
It is not necessarily the case that the parliamentary scrutiny
of such orders will be most effectively carried out by a committee
modelled on the Regulatory Reform Committee. It may be, for example,
that a departmental select committee would be better placed to
consider a particular draft order. Such a committee may already
have done work in the area covered by the draft order; it may
have experience of the bodies to be affected.
31. The Bill as currently drafted refers to 'a committee
of [each] House charged with reporting on the draft order.' These
references occur in Clause 13, where it is that committee which
may recommend a more demanding parliamentary procedure, and in
Clause 16, where under the super-affirmative procedure, the Minister
is required to have regard to any recommendations made by such
a committee on a draft order. It appears from the Explanatory
Notes to the Bill and from the evidence which the Minister gave
to us that the Government sees these two references as being to
the same committee. We are concerned that the provision that the
recommendation as to procedure is made by the committee charged
with reporting on the draft order may introduce an undesirable
inflexibility.
32. As noted above, the order-making powers in this
Bill are very wide in extent and are subject to very few restrictions
as to subject matter. The Minister has given a number of undertakings
in the standing committee which may lead to the Bill being amended
at report stage. But these undertakings relate principally to
the parliamentary procedures under the Bill and will not fundamentally
affect the scope of the powers in it. We do not believe that
the parliamentary scrutiny of draft orders should necessarily
be in the hands of a single committee responsible for all orders
under the Bill rather than being discharged by whichever committee
may have the relevant subject expertise, including the departmental
select committee.
33. As currently drafted it is not clear that the
Bill would allow this. We do not believe that it is the Government's
intention that the Bill should prevent Parliament from being able
to amend its procedures for considering draft orders as experience
of them develops so as to ensure that scrutiny is effective and
proportionate.
34. Some safeguards over the use of the powers in
the Bill, such as further restrictions on matters which may the
subject of an order, could only be introduced by amendment to
the Bill itself. Others, however, might equally well be introduced
in Standing Orders, although we do not believe that it would be
appropriate for a Standing Order to be directly contrary to a
provision in a bill passed by the House. So, for example, we would
not recommend the removal, by Standing Order, of the negative
procedure as an option, if it were to remain as an option in the
Bill itself.
35. There are some advantages to placing key safeguards
in the Bill, even if they could also be made by Standing Order.
The House cannot by resolution overturn a statutory provision,
whereas it can, of course, amend or set aside a Standing Order
in that way.[29] There
are a number of Acts of Parliament which provide for Parliament
to proceed in specific ways when considering certain types of
business (for example the Parliament Acts 1911 and 1949, the Statutory
Instruments Act 1946 and, of course, the Regulatory Reform Act
2001). But there are also strong arguments against including parliamentary
procedures in legislation. These are arguments of principle—one
of the historic privileges of Parliament is its control over its
own proceedings[30]—and
of practicality. It may well become apparent from the use of a
particular parliamentary proceeding that it has certain shortcomings
or inconveniences. If so, it is much easier to put those right
if the proceedings are set out in Standing Orders than if they
are in an Act of Parliament. In the case of this Bill, the parliamentary
procedures are the same for both Houses, even though there may
be good reasons to have different procedures in each House.
36. For example, the Bill Team Manager, Ms Kate Jennings,
told us that the reason that the Bill did not provide a veto for
the relevant committee '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.'[31]
In the Commons the decision of a committee cannot bind the House,
and any such decision may always be overturned on the floor of
the House, but that has not precluded committees from being given
the power to make decisions on behalf of the House. The European
Scrutiny Committee, for example, decides on behalf of the House
which European Documents raise issues of sufficient political
and legal importance that they should be referred to a European
Standing committee for debate.
37. The Government has accepted that draft orders
would only be subject to negative or affirmative—as opposed
to super-affirmative—procedure where the policy content
was sufficiently uncontroversial. The Minister also accepted that
the relevant committees should be the judges of how controversial
a draft order may be.[32]
There is no reason why the mechanism by which they should do this
could not be set out in Standing Orders. We believe that the
parliamentary scrutiny of orders under this Bill would be better
provided for if Clause 13 were replaced with the straightforward
provision that all draft orders would be subject to the super-affirmative
procedure unless either (a) both Houses recommended that either
the affirmative or the negative procedure should apply; or (b)
either House determined that the draft order should not be proceeded
with.
38. It would be for each House to decide by what
procedure it would meet these requirements. In the Commons they
could be delegated by Standing Order to a successor committee
to the Regulatory Reform Committee, even if the substantive scrutiny
of the draft order itself was then undertaken by another committee.
39. We hope that the Government will accept this
recommendation. If not, we plan to table a new clause to implement
it for consideration at report stage. We hope that the House will
support it. The remainder of this report addresses the parliamentary
procedures in the Bill as reported from the standing committee.
If the Government accepts this recommendation, many of our other
recommendations would be implemented by Standing Order rather
than by amendment of the Bill.
28 E.g. Q 2 Back
29
A statutory provision could, of course, be overturned by an order
subject to negative procedure if the Bill is passed in its current
form. Back
30
Erskine May, Parliamentary Practice, 23rd edition p103 Back
31
Q 42 Back
32
Q 9 Back
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