Conclusions and recommendations
Scope of the Bill
1. We
welcome the Minister's undertaking to reconsider whether orders
implementing Law Commission recommendations should be exempt from
the restrictions on criminal offences and forcible entry in the
Bill. The appropriateness of pursuing a proposal for legislative
reform by means of an order under this Bill should be judged by
its substance, not its source. (Paragraph 14)
2. If the order-making
powers in this Bill are to be used to amend private legislation
it is essential that petitioners should continue to have the opportunity
to present their case to Parliament before any such order is made.
In our view this will require all such orders to be subject to
the super-affirmative procedure and in many cases might also require
extensions to the time limits provided under the Bill. (Paragraph
15)
3. We regret that
the Government chose not to commit Part 1 of the Bill to a Committee
of the Whole House. We agree with the Regulatory Reform Committee
that as drafted the Bill is of major constitutional significance.
It is a long-standing, and widely supported, convention that such
Bills are taken in Committee of the Whole House. We are also concerned
that the current programme motion allows only one day for report
and third reading. The Minister undertook in the standing committee
that he would bring forward amendments on a number of matters
at report stage. Given the constitutional importance of this Bill,
we believe that one day may not be sufficient for proper consideration
at report. We recommend that the Government consider amending
the programme motion to allow two days for report stage and third
reading. (Paragraph 17)
Parliamentary scrutiny
4. The
Government has identified areas of legislative activity where
progress has been slower than it, and others, would have liked.
It has apparently decided that that progress will be accelerated
by truncating the parliamentary scrutiny of the legislation. But
it has not produced evidence that the delays and obstacles have
been caused by that parliamentary scrutiny. If the tests required
of an RRO were too restrictive they could have been amended rather
than abolished. Other problems such as Whitehall's cultural approach
to regulatory reform will not be solved by this Bill. (Paragraph
27)
5. 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. (Paragraph 32)
6. 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. (Paragraph 37)
Parliamentary procedures in the Bill
7.
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. (Paragraph
45)
Choice of parliamentary procedure
8. We
believe that the provision to the relevant committee of a veto
on further proceedings on a particular draft order 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. (Paragraph 52)
9. 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. (Paragraph 54)
10. We agree with
the Regulatory Reform Committee that, at the very least, the period
within which the House may recommend a different parliamentary
procedure 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. (Paragraph 58)
Amendments to Standing Orders
11. We
agree that the successor to the Regulatory Reform Committee should
have the power to report from time to time on matters other than
proposals for and drafts of RROs. 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. (Paragraph 72)
12. We recommend that
Standing Order No. 18 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. (Paragraph 73)
13. We look forward
to being involved in consultations with the Leader of the House
on changes to the Standing Orders consequent on this Bill, and,
if the Government accept our recommendations, would be very willing
to prepare the amendments to Standing Orders needed to implement
them. (Paragraph 74)
Conclusion
14. We
have not yet seen the amendments which the Minister has promised
for report stage of the Bill. We do not believe that the fundamental
concerns over the powers in this Bill to amend primary legislation
by order, which have been raised by the Regulatory Reform Committee
and which we share, can be addressed by ministerial assurances.
The merits of any legislation must be judged by what its provisions
state. The provisions of this Bill, as reported from the standing
committee, do not provide adequate levels of parliamentary scrutiny
over, or safeguards against the misuse of, the order making powers
they contain. (Paragraph 76)
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