Overturning our opposition to
a draft Order
7. We are also disappointed that the Minister has
not accepted our recommendation that all provisions for overturning
the procedural effects of our opposition to a draft Order be removed
from the revised Standing Orders. The revised Standing Orders
are likely to include a provision supporting an understanding
that except in "very unusual circumstances"[3]
time would be made available for a debate whenever the Committee
opposes (but does not veto) a draft Order that was subject to
the negative resolution procedure. This option would be exercised
by deeming the Committee's objection to the draft Order to constitute
a notice of a motion under paragraph (4)(a) of Standing Order
No 118 (Delegated Legislation Committees) and tabling a Government
motion to refer the draft Order to a Delegated Legislation Committee.
8. In our previous Special Reports, we called for
the removal of this provision. We felt this reference to a notice
of a motion could easily be misconstrued as a possible way of
overturning our opposition to a draft Order and could also give
rise to the false assumption that a veto of a negative instrument
would automatically generate some further parliamentary procedure
(although it is clear from the Act that it does not). The argument
has now moved on somewhat in the sense that the revised Standing
Orders are now likely to distinguish between a Committee vote
against an Order where the Committee chooses not to invoke the
statutory veto (which the Committee might wish to do to continue
a dialogue with the relevant Government department concerning
an Order which the Committee felt was flawed but still salvageable)
and the Committee's exercise of its statutory veto (which the
Committee could use if it concluded that an Order was inappropriate
for this legislative procedure).
9. As a result of this distinction, the Government'
s option of a debate on an opposed (but not vetoed) draft Order
which is subject to the negative resolution procedure has the
benefit of providing a further parliamentary procedure that would
otherwise not exist. In the absence of this procedure, the relevant
Minister could simply make the Order regardless of the opposition
of the Committee. By introducing the option of a (probable) debate
on such an opposed draft Order, the House would have a procedure
similar to that initiated by a prayer. There are two criticisms
of this procedure. First, this Parliamentary procedure is a relatively
weak form of parliamentary scrutiny. Second, it is important to
note that the use of the provision would, on the face of it, be
inconsistent with the Government's assurance that it would not
proceed with a draft Order in the face of opposition from the
relevant Committee.
10. We recognise that - in the absence of a veto
- a Minister could proceed to make a negative resolution procedure
Order, whatever Standing Orders might state. Accordingly, we expect
our Committee to be mindful of the limited effect that its opposition
would have in relation to negative resolution procedure draft
Orders unless it also invokes the veto. But having said that,
we see the merits of including a route to a debate in the case
of non-veto opposition to such Orders. Because of that, we recognise
that it might appear superficially consistent for Standing Orders
to include (as is expected) a procedure for debate to follow non-veto
opposition to affirmative or super-affirmative resolution procedure
draft Orders as well.[4]
In contrast, rightly in our view, Standing Orders are not expected
to provide for the overturning of any veto, or the overturning
of any Committee adjustment of the parliamentary procedure for
making an Order. We take this opportunity of recording our understanding
that the apparent distinction between different types of Committee
recommendation results from the need for internal completeness
in Standing Orders and no more. Whether or not Committee opposition
to a draft Order operates by way of a veto, we expect the Government
to honour its undertaking not to proceed in the face of that opposition.
On the same basis, we expect the Government not to seek to overturn
any Committee adjustment of the parliamentary procedure for making
an Order.
Conclusion
11. In welcoming the progress that has been made
in refining the Standing Orders, we continue to be disappointed
that the last two outstanding points that separate us have not
been fully resolved. Despite this disappointment, we would like
the House to have the opportunity to consider the revised Standing
Orders at the earliest opportunity.
1 Regulatory Reform Committee, First Special Report
of Session 2006-07, Scrutiny of Regulatory Reform Orders,
HC 160 and Regulatory Reform Committee, Second Special Report
of Session 2006-07, Revised Standing Orders, HC 385 Back
2
Under our existing Standing Orders, a debate on a draft Order
is required only if the Government tables a motion to approve
a draft Order which we had previously approved following a division
or where we had recommended that no further proceedings be taken. Back
3
Minister's letter (dated May 2007) Back
4
It is envisaged that Standing Order 18 will introduce a potential
debate on a draft affirmative or super-affirmative resolution
Order by the words:
"(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,…"
The reference to "paragraphs (4)
or (6)" does not include a reference to paragraph (8) - the
provision in the proposed new Standing Order 141 that covers the
veto. Back
