Draft Communications Data Bill - Draft Communications Data Bill Joint Committee Contents

Appendix 7: Procedure for super-affirmative resolution

  • Future proofing and Parliamentary oversight
  • 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.

  • The super-affirmative procedure
  • 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.

  • Is the super-affirmative procedure quicker than requiring new primary legislation?
  • 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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    © Parliamentary copyright 2012
    Prepared 11 December 2012