Select Committee on Procedure First Report

4  Parliamentary procedures in the Bill

Necessary safeguards

40. The Regulatory Reform Committee set out a range of safeguards which it believed should be included on the face of the Bill. These included—

• A parliamentary veto for the relevant committee in each House;
• Removal of negative procedure as an option;
• Further restrictions on matters which could be the subject of an order; and
• Extension of the 21 day limit for decisions on which procedure will be followed.

In all the report contained some 17 detailed recommendations. Mr Murphy appeared before us the day after the report was published and he was not then in a position to provide a substantive response to those recommendations—

I am sure you would not expect me, Chairman, to have specific and detailed responses to the Select Committee's report which was published yesterday, but what I would say is that we think that many of those recommendations have a good deal of merit and we are minded to see just how we can take on board the specific suggestions made by the Regulatory Reform Select Committee.[33]

When he was asked when he expected to be able to respond to the recommendations, he gave this undertaking—

I do not think it would be appropriate to go into the standing committee deliberations of this Bill not having produced a response, and, rather than saying a week, three days, ten days, I think in terms of the dynamic of Parliament, we have to have that produced in good time to allow the standing committee to reflect upon it.[34]

41. We suggested to him that it might take more time to give a considered response and asked whether in those circumstances he would consider postponing the standing committee to allow a proper response to be prepared. He replied—

I do not anticipate that, and I have already had numerous conversations arising from the Regulatory Reform Select Committee report and recommendations and we are developing our response pretty quickly. We will be in a position whereby we will produce our response in good time in advance of the standing committee beginning its work.[35]

The Minister repeated that commitment during debate on the second reading of the Bill two days later.[36]

42. As we noted above, following the second reading a programme motion was agreed to under which the Bill was committed to a standing committee. Under that motion the standing committee proceedings were required to be concluded by 9 March. Because of the February adjournment, the first meeting of the standing committee was on 28 February.

43. The Minister's reply to the Regulatory Reform Committee's report was made in the form of a letter to the Chairman of the Committee. The letter was received by that Committee on 27 February. Members of the standing committee received copies on the same day. This was the day before the first meetings of the standing committee and thus after the last date on which amendments to be considered at the first two sittings could be tabled. The reply was made more widely available when, in response to a written question from the Chairman of the Regulatory Reform Committee, it was placed in the Library on 1 March.

44. The letter was accompanied by an annex which responded to the individual recommendations of the Committee. The letter described this annex as an 'initial response.' It restated the arguments in favour of the Bill as set out by the Minister in his evidence to us and in the second reading debate. It did not, however, include substantive answers to any of the Committee's specific recommendations to increase the safeguards in the Bill or to strengthen the parliamentary procedures. Instead it contained such phrases as—

As the Bill enters Committee Stage, the Government will listen carefully to the views of Parliament and seek its support in achieving the right balance between powers and protection.

The Government values the Committee's expertise in this area and will consult with stakeholders as the Bill receives scrutiny during its Parliamentary passage.[37]

45. Amendments to introduce the additional safeguards recommended by the Regulatory Reform Committee in terms of limitations on the purposes for which orders could be used or the subject matter which they could cover were tabled for consideration in the standing committee. None of them, however, was accepted by the Government or made by the standing committee. We welcomed the Minister's statement to our committee that it would not be appropriate to go into the standing committee deliberations without the Government's response to the recommendations of the Regulatory Reform Committee but we were disappointed by the lack of substance in the response that was provided. We are also extremely concerned by the apparent unwillingness of the Government, certainly to date, to agree to additional safeguards being added to the Bill. We hope that this will be rectified at report stage.

Choice of parliamentary procedure

46. Clause 13 of the Bill set outs the mechanism for determining which parliamentary procedure is to apply to a draft order. As noted above an initial recommendation is made by the Minister. That recommendation may be overturned if either House requires, within 21 days of the laying of the draft order, a more demanding procedure (ie affirmative or super-affirmative if the recommendation is for negative procedure; super-affirmative if the recommendation is for affirmative procedure). In each House this is done either by the House resolving that a different procedure should apply or by the 'committee of that House charged with reporting on the draft order' recommending that a different procedure should apply, unless that recommendation is rejected by the House by resolution within the 21-day period.

47. We have a number of concerns over these provisions—

• There is no power to reject a draft order which the committee or the House considers to be inappropriate (e.g. because it is 'highly controversial');
• 21 days is too short a time to allow proper consideration of what might be the appropriate procedure for what may well be large and complex draft orders;
• The 21 day period runs concurrently with the 40 and 60 day periods for further consideration of the draft, rather than being additional to those periods;

POWER TO REJECT

48. In response to the Regulatory Reform Committee's recommendation that the Bill should allow Parliament to veto the delivery of individual proposals by order, the Government stated—

… we have reiterated two commitments - that highly controversial proposals are not appropriate for delivery by order, and that the Government will not force an order through in the face of opposition from the Parliamentary Scrutiny Committees, effectively giving the Committees a veto over individual orders.[38]

In his evidence to us the Minister described how a similar undertaking in respect of RROs had operated—

One of the strengths of the 2001 Act … was that it allowed a proper working arrangement between whichever government minister and department and the relevant select committees. Through a process of evolution of what is controversial, highly controversial and what is reasonable, it allowed accommodation of stakeholder consultation, ministerial assessment and select committee recommendation to decide where the centre of gravity is on controversial or highly controversial and it is our sense that that is still the correct way to progress so that in time a select committee, government and stakeholders will effectively establish where the line is.[39]

49. It is not entirely clear in the Government response whether the undertaking was not to proceed in the face of opposition from the committee in either House or only in the case of opposition from both.

50. The Minister told the standing committee considering the Bill—

we made a commitment … to include a veto in the Bill, and it is important that we do so. The Government will make a specific proposal based on that principle before we debate the issue on Report.[40]

He also undertook—

to discuss the matter with the relevant Front Benchers and with the Chairs of the relevant Select Committees in the House of Commons before we reach Report.[41]

51. In the debate in the standing committee the Minister was noticeably more sympathetic to the idea of a veto exercised by the relevant committee than to an amendment under which a draft order could not be proceeded with if more than 50 Members wrote to the Speaker objecting to it. He argued that it would not be appropriate 'to define what is highly controversial … by means of an arbitrary number of Members of Parliament.'[42]

52. Our Chairman has not yet had the discussions offered by the Minister. It seems to us at this stage that the Minister's commitment to a veto is a commitment to make explicit what has been the practice in dealing with RROs: if the Committee is opposed to a specific proposal being proceeded with under the Regulatory Reform Act, the Government will not proceed with it. We believe that such a provision is a necessary addition to this Bill, but given the lack of other restrictions on the order-making power, we are not convinced that it is a sufficient provision.

53. There are examples of categories of business in the House being able to be blocked by a certain number of Members (not necessarily a majority).[43] We have already commented on the breadth of the powers being taken by the Government under this Bill and on the need to distinguish between the text of the Bill and the Government's stated intentions under it. The Government has taken more far-reaching powers than it intends to use. Indeed the Minister has repeatedly undertaken that it would never use the full extent of those powers. Nonetheless they remain on the face of the Bill. They have not been reduced in standing committee and the Minister has given no commitment that they will be at report stage.

54. The membership of the committee, to which the Government is prepared to give a veto, will of course include a majority of government members. It is no reflection on the performance of the Regulatory Reform Committee in respect of RROs to question whether a veto given to its successor in respect of a Bill of much wider scope is sufficient protection against possible abuse. We believe that there should be a power of veto which could be exercised outside the Committee as well as one within it. We do not, however, propose that the mechanism for exercising such a power should appear on the face of the Bill. Instead we recommend that the House should make it an instruction to the relevant committee to exercise its veto in respect of a particular draft order where certain conditions have been fulfilled.

55. Those conditions could include that a certain number of Members have written to the Committee opposing the draft order and that they come from more than one party; or that the relevant departmental select committee has reported that the draft order should not be proceeded with.

THE 21-DAY PERIOD

56. The Bill requires the House to make a decision on the appropriate parliamentary procedure within 21 days of a draft order being laid. The Regulatory Reform Committee suggests that this period may have been chosen because by convention no statutory instrument will normally be brought into effect less than 21 days after being laid before Parliament. It goes on to recommend that the period should be extended to at least 30 days.[44]

57. Since the Bill provides that the committee's recommendation as to parliamentary procedure may be rejected by a resolution of the House, the committee would in practice have less than 21 days in which to reach its decision. We were told in evidence that '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 [a subsequent motion in the House].'[45] Given the Minister's statements as to the importance he would ascribe to the recommendation of the committee, we would expect such motions to be moved only very rarely. Equally we would expect the Government to consider the committee's recommendation very carefully before moving to overturn it. We would also expect such a motion to be debateable. The Government might reasonably argue that if it is to meet these requirements the committee would have to make its recommendation at least a week before the statutory deadline.

58. We agree with the Regulatory Reform Committee that, at the very least, the period should be extended to 30 days. However, it may well be unrealistic to expect a committee to assess the policy implications and level of controversy of a long or complex draft order within 30 days. We note that the task of deciding whether a draft order should be subject to a more demanding parliamentary procedure will generally take longer and be more difficult than deciding whether a less demanding procedure should apply.

Periods provided for parliamentary consideration

59. Before any draft order can be presented to Parliament, the Minister is required to undertake a period of public consultation. The terms of that consultation are governed by Clause 11 of the Bill. The Minister told us—

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.[46]

60. Under the Bill, Parliament is to have 40 days to consider a draft order subject to the negative or affirmative procedure and 60 days for one subject to the super-affirmative procedure. We considered the relative proportion of the total time taken by parliamentary and non-parliamentary consideration of RROs in paragraphs 22 to 27 above, but it is worth noting here that in respect of every RRO made since March 2003[47] the Government has taken more than 60 days to lay a proposal for an RRO after the conclusion of the consultation period.

61. As we noted above, the Government's consultation document, A Bill for Better Regulation, suggested that greater speed of delivery would flow from allowing orders under the Bill to be made by affirmative or negative procedure. We reject this argument and we note that in his evidence to us the Minister did not claim that negative or affirmative procedure might be chosen in preference over super-affirmative for reasons of urgency—

… 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.[48]

62. The Minister was not receptive in the standing committee to amendments to extend the 40 day period provided for consideration of negative or affirmative procedure draft orders. He described such an extension as 'unnecessary' since it was always open to the Committee to recommend the super-affirmative procedure which would provide a 60 day period.[49] He opposed amendments to extend the 60 day period on the grounds that it 'would compromise the principle of proportionality, which hon. Members on both sides of the House support and which underpins these procedures.'[50] On the other hand he stated that, as had been the case with RROs, 'if Committees go beyond the 60-day limit—as they did for the fire safety and civil registration proposals—in practice, Departments will always wait until the Committees have reported before laying the second-stage order. We see no reason for a formal extension of the super-affirmative procedure.'[51]

63. We do not at this stage recommend an automatic extension of the 60 day period. The Minister undertook that—

Varying the Committee's flexibility to scrutinise orders undergoing super-affirmative resolution procedure for more than 60 days could also be reviewed when any necessary changes to Standing Orders are discussed.[52]

We look forward to being involved in those discussions. An additional concern is that, if the Minister is correct in predicting that many more draft orders will be brought forward under this Bill than was the case under the Regulatory Reform Act, there is a risk that the Committee will be faced with the need to consider several at the same time and that may lead to delays.

Amendments to draft orders

64. As we noted above, secondary legislation is not normally amendable. The Regulatory Reform Committee has proposed—

in the case of super-affirmative instruments … the Houses or their committees should have the power of suggesting amendments reinforced by a provision to the effect that, if the amendments were agreed by both Houses, the Minister would either have to take the amendments on or discontinue his proposal to legislate by order.[53]

There is no formal system for amending RROs, but on a number of occasions the committees have recommended amendments to proposals which have been accepted by the Government and incorporated into the draft order. It might be argued that that informal system would work equally well for draft orders under this Bill. The Minister, however, did not make this argument. Instead he told us—

we will try and find a way in which that [i.e. a procedure for accepting amendments] can be enabled.[54]

65. We welcome this undertaking and will be interested to consider the Minister's proposals when they emerge. Our preference would for the legislation to contain a requirement that where the two Houses have agreed to identical amendments, the Minister may not proceed with an order unless it includes those amendments. It would then be for the two Houses to set out in their Standing Orders what would constitute agreement to an amendment to a draft order. Since draft orders will be considered by both Houses at the same time, it is unlikely that formal messages between the Houses would be an appropriate means of reaching agreement over the text of specific amendments. We would instead expect to rely on the continuation and extension of the existing excellent informal relations between the committees in both Houses. Under Standing Order No. 137A select committees in the House of Commons are, among other things, permitted to communicate their evidence to, and to meet concurrently with, any committee or sub-committee of the House of Lords. A reciprocal power is given to House of Lords committees.[55]

Standing Order changes

66. The Regulatory Reform Committee recommended various changes to Standing Order No 141 (Regulatory Reform Committee) and Standing Order No. 18 (Consideration of draft regulatory reform orders).

67. In respect of Standing Order No. 141 the Committee asked the House to consider what should replace the existing fourteen tests against which the Committee is required to assess each proposal for an RRO. Those tests reflect the regulatory character of RROs; they do not accurately reflect the powers in the new Bill. The Committee recommends that its successor should be required to assess draft orders against the preconditions in the Bill.

68. The Committee also recommends that Standing Order No. 141 should be amended so that its successor committee will be able to conduct 'inquiries into regulation more generally' and that therefore it should have 'the same powers as those granted to departmental select committees under S.O. No. 152.'[56]

69. Thus on the one hand the Committee proposes that its successor should no longer assess draft orders against the existing range of criteria which are explicitly designed to enable the Committee to judge to what extent a proposal contributes to regulatory reform, and on the other the Committee recommends that it should be given powers to enable it 'to undertake inquiries into regulation more generally.' These recommendations would give the Committee two distinct roles which seek to reconcile the inconsistency between the provisions of the Bill and the Government's declared intentions in respect of them.

70. Under the Bill as currently drafted there will be two stages to the Committee's consideration of a draft order. Firstly the Committee will have to decide whether to accept the Minister's recommendation as to parliamentary procedure or to recommend another procedure, or indeed that the draft order not be proceeded with. We have made a recommendations on how this should operate in earlier paragraphs. If the Minister does not bring forward an amendment to provide an explicit veto on the face of the Bill, we believe that it should be explicitly provided for in the Standing Order.

71. The second stage of the Committee's consideration will be into the substance of the draft order. It is right that at this stage the Committee should be required to assess the draft order against the five preconditions in the Bill. But the Committee should also assess the draft order's contribution to the Government's stated objectives for the Bill: the implementation of their 'ambitious agenda for better regulation.'[57] Some of the tests in Standing Order No. 141 (6) would continue to be relevant to such an assessment.

72. The Committee's second concern over Standing Order No. 141 is that it does not allow the Committee to report to the House on anything other than a proposal for, or a draft of, an RRO.[58] As noted above the Committee believed that it should be able to report from time to time on regulation more generally and drew attention to correspondence from the Leader of the House in support of this change. We agree that the successor Committee should have this power. We recommend that, as well as reporting on regulation, it should also from time to time produce reports on the uses made by the Government of the powers in the Bill for purposes other than regulatory reform.

73. Under Standing Order No. 18 a debate on a draft order is provided for only if the Committee has agreed that the draft order should be approved after a division. The Regulatory Reform Committee notes that under the Bill this may have the perverse effect of limiting opportunities for debate on the most significant orders (i.e. those subject to the super-affirmative procedure), while requiring debate on less important orders (i.e. those subject to the affirmative procedure).[59] We agree, and recommend that the Standing Order be amended to allow the Committee to recommend a debate on a draft order subject to the super-affirmative procedure without dividing. Indeed we would go further and recommend that, where the Committee is prepared to recommend the approval of a draft order which it nonetheless assesses to be both controversial and politically and legally important, it should be able to recommend a three hour debate.

74. While noting that amendments to the Standing Orders would not be his responsibility, the Minister was confident that the Government and the Leader of the House would want to consult us (as well as the Regulatory Reform Committee) on specific proposals. We look forward to being involved in such consultations, and, if the Government accept our recommendations, would be very willing to prepare the amendments to Standing Orders needed to implement them.

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33   Q 2 Back

34   Q 16 Back

35   Q 17 Back

36   HC Deb 9 February 2006 c1056. Back

37   Letter from Mr Jim Murphy, MP, Parliamentary Secretary, Cabinet Office, to Mr Andrew Miller MP, Chairman, Regulatory Reform Committee, Annex A. Back

38   Letter from Mr Jim Murphy, MP, Parliamentary Secretary, Cabinet Office, to Mr Andrew Miller MP, Chairman, Regulatory Reform Committee, Annex A. Back

39   Q 10 Back

40   Stg Co Deb, Standing committee A, 7 March 2006, c196. Back

41   Ibid Back

42   Stg Co Deb, Standing committee A, 7 March 2006, c197. Back

43   E.g. Standing Order No. 118 (4). Back

44   HC (2005-06) 878, paragraphs 61ff. Back

45   Q 41 Back

46   Q 45 Back

47   And all but four made before that date. Back

48   Q 47 Back

49   Stg Co Deb, Standing committee A, 7 March 2006, c224. Back

50   Ibid Back

51   Stg Co Deb, Standing committee A, 7 March 2006, c225. Back

52   Ibid Back

53   HC(2005-06) 878, paragraph 60. Back

54   Q 55 Back

55   Under Standing Order 68. Back

56   HC(2005-06) 878, paragraph 78. Back

57   HC Deb 9 February 2006 c1060. Back

58   The Committee's assessment of the Bill was published as a Special Report. Back

59   HC (2005-06) 878, paragraph 83. Back

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Prepared 17 March 2006