Select Committee on Procedure First Report


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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Prepared 17 March 2006