Companion to the Standing Orders and guide to the Proceedings of the House of Lords

Companion to the Standing Orders and guide to the Proceedings of the House of Lords

OTHER TYPES OF DELEGATED LEGISLATION

Orders under the Legislative and Regulatory Reform Act 2006

9.19 Under the Legislative and Regulatory Reform Act 2006, ministers have wide-ranging powers to amend primary legislation by order so as to remove or reduce burdens (under section 1) or to promote regulatory principles (under section 2). The Act makes unique provision for determining the parliamentary procedure for such orders.

9.20 A minister wishing to make an order under the Act must first consult on his proposals. Then the minister must lay a draft order before both Houses, with an explanatory document. This must specify certain matters set out in section 14 of the Act. Also, under section 15, it must recommend which of the following parliamentary procedures should apply:

(a) negative resolution

(b) affirmative resolution

9.21 If the minister recommends negative resolution procedure, then that applies unless, within 30 days[415] from the date when the draft order was laid, either House of Parliament requires affirmative or super-affirmative resolution procedure, in which case that applies. If the minister recommends affirmative resolution procedure, then that applies unless, within 30 days, either House requires super-affirmative resolution procedure, in which case that applies. If the minister recommends super-affirmative resolution procedure, then that applies.

9.22 A House may express a requirement under section 15 in one of two ways. It may resolve that a certain procedure shall apply. Or a scrutiny committee may recommend within the 30 days that a certain procedure shall apply, in which case this is deemed to be the requirement of the House unless, within those 30 days, the House resolves otherwise.

9.23 The House of Lords has appointed the Delegated Powers and Regulatory Reform Committee as the committee charged with reporting on draft orders laid under the Act. The three forms of procedure are defined in the Act as follows.

NEGATIVE RESOLUTION PROCEDURE (SECTION 16)

9.24 The minister may make the order unless, within 40 days[416] from the date when the draft order was laid, either

(b) a scrutiny committee of either House recommends otherwise, between the end of the 30-day period and the end of the 40-day period, and the House concerned does not reject the recommendation, by resolution, in the same Session.

9.25 If (a) a scrutiny committee of either House recommends against the order and (b) the House concerned rejects the recommendation by resolution, the 40-day period is extended for both Houses by the number of days between (a) and (b).

AFFIRMATIVE RESOLUTION PROCEDURE (SECTION 17)

9.26 The minister may make the order if, after the expiry of 40 days from the date when the draft order was laid, both Houses of Parliament resolve to approve the draft.

9.27 If however a scrutiny committee of either House recommends, between the end of the 30-day period and the end of the 40-day period, that the order should not proceed, then it may not proceed unless the House concerned rejects the recommendation, by resolution, in the same Session.

9.28 Again, if (a) a committee recommends against the order and (b) the House rejects the recommendation, the 40-day period is extended by the number of days between (a) and (b).

SUPER-AFFIRMATIVE RESOLUTION PROCEDURE (SECTION 18)

9.29 During a 60-day period[417] from the date when the draft order was laid, it is exposed for scrutiny, and may be the subject of representations to the minister, a resolution of either House, or a report of a scrutiny committee of either House. The minister must have regard to any such representations, resolution or report.

9.30 At the end of the 60-day period the minister must decide what to do. If the minister decides to proceed with the draft as laid, he must lay before Parliament a statement about any representations made during the 60-day period. If he decides to revise the draft, he must lay before Parliament a revised draft order and a statement about the representations made and the revisions proposed. In each case, the order then proceeds as a normal affirmative order.

9.31 If however a scrutiny committee of either House recommends, between the laying of the statement (or the revised draft and the statement) and the approval of the draft, that the order should not proceed, then it may not proceed unless the House concerned rejects the recommendation, by resolution, in the same Session.

Remedial orders

9.32 Under section 10 of the Human Rights Act 1998, if primary legislation is found by a higher United Kingdom court or by the European Court of Human Rights to be incompatible with the European Convention on Human Rights, then "If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility". Such an order is known as a remedial order, and is subject to special procedures set out in Schedule 2 to the Act.

9.33 For non-urgent orders, the minister must first lay a document containing a draft order and an explanation of why it is being made. Parliament and the public have 60 days (not counting recesses) to make representations; "representations" explicitly include "any relevant Parliamentary report or resolution". The minister may then lay a second draft order. If there have been representations, a summary of them must be laid; and if the second draft order is different from the first, the changes must be explained. After a second 60-day period, the order must be approved by both Houses, and may then be made.

9.34 If the order is declared to be urgent, it may be made before being laid. It is then laid, with an explanatory document. There follow 60 days for representations, counted from the date of making the order. If representations are made, the minister must lay a summary; and, if it is intended to amend the original order, a new order may be made and laid, with an explanation. Both Houses must then approve the original or replacement order within 120 days of the making of the original order; otherwise the orders lapse.

9.35 The Joint Committee on Human Rights is charged to consider remedial orders, and to perform for such orders the functions otherwise carried out by the Joint Committee on Statutory Instruments. Under Standing Order 73, no motion to approve such an order may be moved until the committee's report has been laid before the House. In the case of a draft order, the committee must report within 60 days of the laying of the draft. In the case of an urgent order, the committee must report within 119 days of the making of the original order.[418]

Hybrid instruments

9.36 The House of Lords alone has a procedure for considering hybrid instruments.

9.37 When the Chairman of Committees is of the opinion that an affirmative instrument[419] is such that, apart from the provisions of the Act authorising it to be made, it would require to be enacted by a private or hybrid bill, he reports his opinion to the House and to the minister or other person responsible for the instrument. An instrument upon which such a Chairman's report has been made is known as a hybrid instrument. Such instruments can be opposed in the House of Lords by petitioning against them.[420]

9.38 Any petition asking the House not to affirm a hybrid instrument must be deposited with the Clerk of the Parliaments within fourteen days following the day on which the Chairman's report is laid before the House. If no petition is received within this period the Chairman reports accordingly to the House. Any petition received during the period is referred to the Hybrid Instruments Committee (see paragraph 10.58) together with the instrument petitioned against.

9.39 The Hybrid Instruments Committee, after considering any representations made in writing by the parties to the proceedings and after hearing, if it thinks fit, the parties in person or by counsel or agents, decides whether any petitioner has a locus standi. If so, the committee reports to the House, in accordance with the criteria specified in private business SO 216, whether there ought to be a further inquiry by a select committee into all or any of the matters specified by the petitioner. In such a case, the House may refer all or any of the matters on which the committee has reported to a select committee consisting of five members, appointed by the House on the proposal of the Committee of Selection, with terms of reference specified by the House.

9.40 No motion to approve a hybrid instrument may be moved until the proceedings under private business SO 216 have been completed,[421] that is until either:

(b) the Hybrid Instruments Committee has reported that no petitioner has a locus standi, or that there ought not to be an inquiry by a select committee; or

(d) the select committee has reported to the House.

9.41 Where proceedings under private business SO 216 have not been completed in respect of an instrument which has expired or lapsed, a further instrument to substantially the same effect may be substituted for the purposes of those proceedings.

EXPEDITED HYBRID INSTRUMENTS

9.42 A hybrid instrument which, by virtue of the Act authorising it to be made, is, after the expiry of a period prescribed by that Act, to proceed in Parliament as if its provisions would, apart from that Act, require to be enacted by a public bill that is not hybrid, is known as an expedited hybrid instrument.[422] The procedure for such an instrument differs from that applicable to other hybrid instruments in several respects. A petition not to affirm an expedited hybrid instrument must be deposited within ten days following the day on which the instrument is laid. If the Hybrid Instruments Committee is of the opinion that there ought to be a further inquiry, it conducts that inquiry itself forthwith.

9.43 No motion to approve an expedited hybrid instrument may be moved until the proceedings under private business SO 216A have been completed, that is until the Chairman of Committees or the Hybrid Instruments Committee has reported, or the period prescribed by the parent Act has expired.

Special procedure orders

9.44 The procedure for special procedure orders is laid down by the Statutory Orders (Special Procedure) Act 1945, as amended by the Statutory Orders (Special Procedure) Act 1965, supplemented by the private business standing orders of both Houses. That Act applies:

to orders made under Acts passed before the Act of 1945 which are specified in that Act, or to orders made under it;[423] and
to orders made under Acts passed since the Act of 1945 which are expressed in those Acts to be "subject to special parliamentary procedure".[424]

LAYING OF ORDERS

9.45 An order subject to special parliamentary procedure must be laid before Parliament.[425] No order may be laid until the requirements[426] of the enabling Act, or of Schedule 1 to the 1945 Act, as to notices, consideration of objections and holding of inquiries have been complied with; and notice must be published in The London Gazette not less than three days before the order is laid. There must be laid with it a certificate by the minister specifying the requirements of the enabling Act and certifying that they have been complied with or dispensed with.

PETITIONS

9.46 Petitions[427] may be presented against a special procedure order within a period of 21 days, known as the "petitioning period", beginning with the day on which the order is laid before Parliament or, if the order is laid before the two Houses on different days, with the later of the two days. If the petitioning period expires on a Sunday, it is extended to the following Monday; if it expires during a dissolution, prorogation or any period of 10 or more consecutive days on which the House does not sit for public business, it is extended to the day on which the House resumes.

9.47 There are two kinds of petition against a special procedure order:

a petition calling for amendments to the order, which must specify the proposed amendments (a "petition for amendment");
a general petition against the order, which must be presented separately (a "petition of general objection.").

9.48 Memorials[428] stating technical objections to petitions may be deposited in the office of the Clerk of the Parliaments within seven days beginning with the day on which the petition was presented.

9.49 After the petitioning period has expired, the Chairman of Committees and the Chairman of Ways and Means in the House of Commons consider all petitions and report to both Houses. If a petition complies with the Act and standing orders, they certify that it is proper to be received and whether it is a petition for amendment or a petition of general objection. If a petition for amendment[429] involves amendments which would alter the scope of the order or affect the interests of persons other than the petitioner, the Chairmen may make a special report to that effect. If a petition for amendment involves amendments "which would constitute a negative of the main purpose of the order", the Chairmen certify it as a petition of general objection. But if only some of the amendments would defeat the main purpose of the order, the Chairmen may delete those amendments and certify the rest of the petition as a petition for amendment. In certain cases the Chairmen may find it necessary to hear the parties.

9.50 Within 14 days,[430] beginning with the day on which the Chairmen's report is laid before Parliament, counter-petitions may be presented against petitions for amendment.

RESOLUTION FOR ANNULMENT

9.51 If either House within 21 days[431] beginning with the day on which the Chairmen's report on an order is laid before it (the "resolution period") resolves that the order be annulled, the order lapses. In reckoning the resolution period, time during which Parliament is dissolved or prorogued, or both Houses are adjourned for more than four days, is not counted. However, days when the House sits for judicial business are counted if they fall outside prorogation.

9.52 If there is an equality of votes on a resolution for annulment, the resolution is defeated and the order proceeds.

9.53 If no resolution for annulment is passed, any certified petition is referred to a joint committee, except that a petition of general objection is not referred if either House has resolved within the resolution period that it should not be. Any special report of the two Chairmen, and any counter-petitions, are also referred to the committee.

9.54 If no petition is referred to a joint committee at the end of the resolution period, and no resolution for annulment has been passed, the order may come into operation.

JOINT COMMITTEE

9.55 Joint committees under the 1945 Act consist of three members of each House, and private business SO 209 governs their proceedings. Where a petition is for amendment,[432] the committee may report the order with or without amendments to give effect to the petition in whole or in part. Where the petition is of general objection, the committee may report the order with or without amendments, or report that the order be not approved. The report of the joint committee is laid before both Houses. Where the order is reported without amendment,[433] it may come into operation from the date when the report of the committee is laid before Parliament.

9.56 Where the order is reported with amendments,[434] the minister may bring the order as amended into operation on a date of his choice, or withdraw the order, or bring it to Parliament for further consideration by means of a bill for its confirmation.

9.57 Where the committee reports that the order be not approved, the order does not take effect unless confirmed by Act of Parliament.

CONFIRMING BILLS

9.58 A confirming bill presented in respect of an order reported with amendments is a public bill and sets out the order as amended.[435] It is treated as if the amendments had been made in committee in the House in which it is presented, and in the second House likewise it proceeds straight to consideration on report.[436] A bill presented in respect of an order which the committee has reported be not approved goes through the same procedure, unless a petition for amendment was certified but was not dealt with by the joint committee. In that case the confirming bill has a first and second reading, and is referred to that committee for the purpose of considering that petition. Report and third reading follow. In the second House the bill proceeds straight to consideration on report.

ORDERS RELATING TO SCOTLAND[437]

9.59 In the case of orders which do not deal with matters within the legislative competence of the Scottish Parliament but which relate exclusively to Scotland, a preliminary inquiry into objections is held in Scotland by Commissioners in accordance with the Private Legislation Procedure (Scotland) Act 1936. If the minister concerned accepts the Commissioners' recommendations, the order is laid before Parliament and the subsequent proceedings are as already described, except that no petition, whether for amendment or of general objection, is referred to a joint committee unless either House so orders within the resolution period. If the minister is not prepared to accept the Commissioners' recommendations, he may, instead of laying the order before Parliament, introduce a bill for the confirmation of the order. The procedure on such a bill is the same as for a bill under section 9 of the 1936 Act.

Northern Ireland Assembly legislation[438]

9.60 The Northern Ireland Assembly legislates on transferred or devolved matters, and the United Kingdom Parliament has no part to play in the enactment of such legislation. However, certain matters such as policing and criminal justice, taxation and international relations, are excepted or reserved for legislation by the United Kingdom Parliament. The Northern Ireland Assembly can legislate on excepted and reserved matters with the consent of the Secretary of State.

9.61 In such circumstances, section 15 of the Northern Ireland Act 1998 provides that the Secretary of State may not submit for Royal Assent a bill of the Northern Ireland Assembly touching on an excepted or reserved matter unless he has laid the bill before the United Kingdom Parliament. In an urgent case, the Secretary of State may submit the bill for immediate Royal Assent; but he must then lay the Act before both Houses at Westminster. Either way, when such a bill or Act has been laid at Westminster, each House has 20 sitting days within which a motion to oppose the bill or Act may be tabled.

9.62 Under the Act, any such motion must be signed by at least 20 members of the House. The usual rules of the House on adding names to motions (see paragraph 5.43) are dispensed with for these motions on Northern Ireland Assembly legislation.

9.63 Procedure on these motions is as follows:

when a Northern Ireland Assembly bill or Act is laid before the House, its arrival is recorded in the Minutes of Proceedings, and in a table in the legislation section of House of Lords Business entitled "Northern Ireland Assembly Legislation on Reserved/Excepted Matters in Progress". This table shows the expiry date of the 20-day statutory period. If 20 sitting days pass and no motion is put down, the House's involvement is at an end;
if within the 20 days a member of the House tables a motion to oppose the bill or Act, the motion is printed in House of Lords Business;
signatures to the motion may be added in the Table Office or the Public Bill Office;
signatories to the motion are listed in House of Lords Business. If further members of the House add their names, they are added to the list. Once 20 have signed, the list is replaced with a total number;
a signature is required, either on a copy of the motion, or on a note clearly indicating the Lord's wish to be associated with the motion. Fax, e-mail and telephone are not acceptable;
the master copy of the motion, with a consolidated list of signatures, is kept in the Table Office, and is open for inspection;
a Lord may withdraw his signature at any time, by giving written authority;
if, on the 20th day, the number of signatories has not reached 20, the motion is ineffective. If it has reached 20, the motion may be put down for a day and debated in the usual way. When the motion is put down for a day, only the name of the person who originally tabled the motion appears on the order paper as the person who is to move the motion. The total number of signatures which the motion has attracted is indicated with the text of the motion.