Appendix 7: Procedure for super-affirmative
resolution
1. If clause 1 is to be narrowed then it is necessary
to consider what should happen if changes are needed in the future.
2. The Home Office wishes to future proof the
Bill and this will inevitably require either very broad powers
which the Secretary of State can exercise herself (as in the current
clause 1), or a narrower set of powers in clause 1 combined with
a significant delegation of legislative power to the Secretary
of State to enable her (and her successors) to make an order to
widen clause 1 if and when necessary. The other option is not
to future proof the Bill and simply to accept future primary legislation
may be necessary.
3. The super-affirmative procedure is set out
under section 18 of the Legislative and Regulatory Reform Act
2006. Briefly it is as follows. The Minister has a statutory duty
to consult (section 13) and must lay before Parliament an explanatory
memorandum for the order including, among other things, details
of the consultation (section 14). The Minister cannot make the
order for 60 days from the date it is laid not including periods
when either House is adjourned for more than 4 days. Within the
60 days a Committee of either House charged with reporting on
the draft order can recommend that no further proceedings be taken
on the order, can make recommendations for amendment of the draft
order or could clear it without making recommendations. The minister
must have regard to any resolutions or recommendations, or any
other representations made during the 60 days. After the 60 days
has elapsed, the Minister can either proceed with the draft order
without amendment or lay a revised draft order, and then there
is a further process of non-time limited committee scrutiny and
affirmative approval by both Houses. A Committee of either House
can thus block an order if it believes that, even if amended,
it is still unsatisfactory. Only a resolution of the relevant
House can overturn the Committee's recommendation.
4. This procedure pre-supposes that at least
one House either already has a Committee designated and able to
scrutinise the draft order or that it is prepared to set up such
a Committee any time an order is laid. It might be appropriate
to recommend the formation of a Joint Committee (although this
would ultimately be a matter for the two Houses). However, a government
with a majority could block the setting up of such a Committee.
If a special committee has to be appointed once an order was laid
this would take a chunk of time out of the 60 day scrutiny period:
it always takes at least two or three weeks to set up a joint
committee and often it takes significantly longer.
5. The super-affirmative procedure is not necessarily
quicker than the primary legislative route. The Home Office says
primary legislation is too slow and they need a quicker way to
widen clause 1. But emergency or fast-track primary legislation
can be passed in a few days, and even non-emergency legislation
can be passed within a few months (if it can get a place in the
legislative programme or can be added to other another Bill).
6. The super-affirmative procedure could go on
for a long time under the super-affirmative process. For example,
if an order had been laid on 16 July 2012 the 60 day scrutiny
period (taking into account recess dates in both Houses) would
run until January 2013, then there would need to be time for HMG
to consider recommendations/representations, come forward with
the original or a revised order, further committee scrutiny and
motions in both Houses. All in all it could potentially take 8-9
months.
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