Appendix
A
Letter from the Pat McFadden MP, Parliamentary
Secretary, Cabinet Office, to the Chairman of the Regulatory Reform
Committee
I am writing in response to the recommendations made
in your First Special Report of Session 2006-07 concerning Regulatory
Reform Committee Standing Orders for scrutinising orders under
the Legislative and Regulatory Reform Act 2006.
Continuing current procedures, I am content to agree
that a Minister's motion to agree a draft order, which has not
been approved unanimously by Members of the Committee, should
be debated on the floor of the House for up to one and a half
hours. The Committee has also proposed that it should be able
to force a debate on orders on which they have not divided. I
can assure you that, if the Committee were to make such a recommendation,
the usual channels would of course consider positively any request
for wider debate in the same way that time for debate was given
for wider consideration of the Regulatory Reform Order (Fire Safety)
proposal. But I would also be happy to underpin this commitment
by including in Standing Order No 141, if you think it would be
helpful, a specific Committee option to recommend draft Orders
which the Committee considers of sufficient legal and political
significance, but on which they have not divided, for debate in
a Delegated Legislation Committee.
I can reiterate the Ministerial undertaking that
the Government will not force through an order in the face of
opposition from relevant Committees. I agree with the Procedure
Committee (included in your report at Appendix C) that the House
in principle must have the power and the right to overturn a Committee
veto. On this basis, I am content to agree that there is no need
for detailed procedures to be laid out in Standing Order No. 18.
Although the main body of your report does not deal
with it, I cannot agree to the effect of your proposed change
to proposed Standing Order 18 (5) in respect of debate on negative
Orders which the Committee has voted against. However, I am content
to give an undertaking that a Motion in these circumstances would
be given a debate except in very unusual circumstances. A Committee
rejection of a draft order subject to negative resolution procedure
would be a motion of similar character to a prayer.
I accept that your Committee should continue
to scrutinise any future Subordinate Provisions
Orders under the 2001 Act. The attached revised
draft Standing Orders reflect this. The Government can also accept
your Committee's proposed change to the wording in 141
(3b and 3c) to "serves the purpose
of removing or reducing a burden …". I acknowledge that
there may be instances in the future where greater flexibility
will be required for the second stage Committee reporting period
on an amended order under the super-affirmative resolution procedure.
Although I agree that your Committee has always fully complied
with the instruction of 15 days under the 2001 Act, for the purposes
of certainty for both stakeholders supporting any proposed order
and the Government itself, I propose that the period should be
lengthened to 25 days. An extra two working weeks should cover
any future possibility of timing difficulties.
I do not see the need for deleting Standing Order
141(13). Instead I have redrafted it so that it is less burdensome,
but still ensures that the relevant Government department has
the opportunity to explain the case for the need for an order.
I can reiterate the Government undertaking made during
the passage of the Act through Parliament, that a Minister will
report to the House no less than five years after enactment on
the operation of the Act. In the meantime, departmental Simplification
Plans will include proposals that have been identified as suitable
for delivery by order. As you will know from the 2006 Simplification
Plans, where available, the proposals include an estimate of the
costs saved and the benefits expected from individual proposals.
Furthermore, every draft order laid under
the LRRA 2006 will be accompanied by an explanatory document.
It is a statutory requirement that this explanatory document include
in the case of an order under section 1, an assessment of the
extent to which the provision would remove or reduce burdens.
Together, Simplification Plans and individual orders will provide
a very clear validation of costs and benefits derived from orders
under the LRRA.
There are one or two other minor drafting changes
from the version in my earlier letter which I understand are acceptable
following discussions at official level. I hope that on the
basis of this we can agree the final draft
of Regulatory Reform Committee Standing Orders so that CA Committee
clearance on them can be sought
25 January 2007
ANNEX A
Further revised version of Standing Orders
Consideration of Regulatory Reform Orders
18.—(1) If the Regulatory Reform Committee
has recommended under paragraphs (4) or (6) of Standing Order
No.141 (Regulatory Reform Committee) that a draft Order subject
to the affirmative or super-affirmative procedure, laid before
the House under Part 1 of the Legislative and Regulatory Reform
Act 2006, should be approved, and a motion is made by a Minister
of the Crown to that effect, the question thereon shall:
(a) if the committee's recommendation was agreed
without a division, be put forthwith; and
(b) if the committee's recommendation was agreed
after a division, be put not later than one and a half hours after
the commencement of proceedings on the motion;
(2) If the committee has recommended under paragraphs
(4) or (6) of Standing Order No.141 that a draft Order subject
to the affirmative or super-affirmative procedure be not approved,
no motion to approve the draft Order shall be made unless the
House has previously resolved to disagree with the committee's
report; the questions necessary to dispose of proceedings on the
motion for such a resolution shall be put not later than three
hours after their commencement; and the question on any motion
thereafter made by a Minister of the Crown that the draft Order
be approved shall be put forthwith.
(3) If the committee recommends that a draft
Order subject to the negative resolution procedure should not
be made, that recommendation shall be deemed to constitute notice
of a motion under paragraph (4)(a) of Standing Order No 118 (Delegated
Legislation Committees).
(4) Motions under paragraphs (1) or (2) above may
be proceeded with, though opposed, until any hour.
Regulatory Reform Committee
141. (1) There shall be a select committee, called
the Regulatory Reform Committee, to examine and report on—
(i) every draft Order laid before the House under
sections 14 and 18 of the Legislative and Regulatory Reform Act
2006 ('the Act');
(ii) any Subordinate Provisions Order or draft of
such an Order made or proposed to be made under sections 1 and
4 of the Regulatory Reform Act 2001 (except those not made by
a Minister of the Crown);
(iii) any matter arising from its consideration of
such Orders or draft Orders; and
(iv) matters relating to regulatory reform.
(2) In the case of every draft Order referred to
in paragraph (1) (i) above the committee shall consider the Minister's
recommendation under section 15(1) of the Act as to the procedure
which should apply to it and shall report to the House any recommendation
under the Act that a different procedure should apply.
(3) In its consideration of draft Orders under Part
1 of the Act the committee shall include in its consideration
in each case whether provision in the draft Order—
(a) appears to make an
inappropriate use of delegated legislation;
(b) serves the purpose
of removing or reducing a burden, or the overall burdens, resulting
directly or indirectly for any person from any legislation (in
respect of a draft Order under section 1 of the Act);
(c) serves the purpose
of securing that regulatory functions are exercised so
as to comply with the regulatory principles, as set out in section
2(3) of the Act (in respect of a draft Order under section 2 of
the Act);
(d) secures a policy objective
which could not be satisfactorily secured by non-legislative means;
(e) has an effect which
is proportionate to the policy objective;
(f) strikes a fair balance
between the public interest and the interests of any person adversely
affected by it;
(g) does not remove any
necessary protection;
(h) does not prevent any
person from continuing to exercise any right or freedom which
that person might reasonably expect to continue to exercise;
(i) is not of constitutional
significance;
(j) makes the law more
accessible or more easily understood (in the case of provisions
restating enactments);
(k) has been the subject
of, and takes appropriate account of, adequate consultation;
(1) gives rise to an issue
under such criteria for consideration of statutory instruments
laid down in paragraph (1) of Standing Order No 151 (Statutory
Instruments (Joint Committee)) as are relevant;
(m) appears to be incompatible
with any obligation resulting from membership of the European
Union;
Provided that in the case of draft Orders under section
20 of the Act, those criteria which are not relevant to provisions
made pursuant to section 2(2) of the European Communities Act
1972 need not be taken into consideration in relation to those
provisions.
(4) In relation to every draft Order laid under section
14 of the Act subject to the negative or affirmative procedure
under sections 16 or 17 of the Act, the committee shall report
its recommendation whether the draft Order should be made (in
the case of the negative procedure) or approved (in the case of
the affirmative procedure), indicating in the case of the latter
whether the recommendation was agreed without a division.
(5) In relation to every draft Order laid under section
14 of the Act subject to the super-affirmative procedure under
section 18 of the Act, the committee shall report its recommendation
as to whether—
(a) the draft Order should be proceeded with unamended
under section 18(3) of the Act; or
(b) a revised draft Order should be laid under section
18(7) of the Act; or
(c) no statement under section 18(3) or revised draft
Order under section 18(7) should be laid.
(6) In relation to every draft Order or revised draft
Order subject to the super-affirmative procedure being proceeded
with under section 18(3) or 18(7) of the Act, the committee shall
report its recommendation whether the draft Order or revised draft
Order should be approved, indicating in the case of draft Orders
which it recommends should be approved whether its recommendation
was agreed without a division; and in respect of such draft Orders
or revised draft Orders the committee shall consider in each case
all such matters set out in paragraph (3) of this Order as are
relevant and the extent to which the Minister concerned has had
regard to any resolution or report of the committee or to any
other representations made during the period for parliamentary
consideration.
(7) It shall be an instruction to the committee considering
draft Orders being proceeded with under section 18(3) or section
18(7) that it report not more than fifteen sitting days (in the
case of an order under section 18(3)) or twenty-five sitting days
(in the case of an order under section 18(7)) after the relevant
statement is laid.
(8) In relation to every draft Order or revised draft
Order, the committee shall report any recommendation under section
16(4) of the Act that the draft Order be not made, or under sections
17(3), 18(5) or 18(9) of the Act that no further proceedings be
taken in relation to the draft Order.
[(8A) Where the committee has reported under paragraphs
(4) or (6) above that a draft Order should be made (in the case
of the negative procedure) or should be approved (in the case
of the affirmative or super-affirmative procedure) it may also
report a recommendation that the draft Order be debated.]
(9) In its consideration of any Subordinate Provisions
Order under paragraph (1)(ii) above, the committee shall in each
case consider whether the special attention of the House should
be drawn to it on any of the grounds laid down in paragraph (1)
of Standing Order No. 151 (Statutory Instruments (Joint Committee));
and if the committee is of the opinion that any such Order or
draft Order should be annulled, or, as the case may be, should
not be approved, they shall report that opinion to the House.
(10) The committee shall consist of fourteen members;
and, unless the House otherwise Orders, each Member nominated
to the committee shall continue to be a member of it for the remainder
of the Parliament.
(11) The committee shall have power—
(a) to send for persons,
papers and records, to sit notwithstanding any adjournment of
the House, to adjourn from place to place, and to report from
time to time;
(b) to appoint specialist
advisers either to supply information which is not readily available
or to elucidate matters of complexity within the committee's order
of reference; and
(c) to appoint a sub-committee,
of which the quorum shall be two, which shall have power to send
for persons, papers and records, to sit notwithstanding any adjournment
of the House, and to adjourn from place to place.
(12) The committee and the sub-committee shall have
the assistance of the Counsel to the Speaker.
(13) The committee and the sub-committee shall have
power to invite Members of the House who are not members of the
committee to attend meetings at which witnesses are being examined
in relation to matters within paragraphs (1) (i) and (ii) and
such Members may, at the discretion of the chairman, ask questions
of those witnesses; but no Member not being a member of the committee
shall otherwise take part in the proceedings of the committee
or sub-committee, or be counted in the quorum.
(14) It shall be an instruction to the committee
that before reporting on a draft Order it shall afford to any
government department concerned a reasonable opportunity of furnishing
orally or in writing to it or to the sub-committee appointed by
it such explanations as the department think fit.
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