Session 2005-06 15 February 2006
Attn: Parliament and Political Correspondents
For Immediate Publication or Broadcast
PROPOSED SWEEPING LAW REFORM POWERS: CHANCES OF LIMITING MINISTER'S POWERS BOOSTED
Minister for the Cabinet Office, Jim Murphy, told the House on Tuesday that Government was minded to adopt many of the recommendations made by the Regulatory Reform Committee to limit the powers of the Legislative and Regulatory Reform Bill.
Last week the influential Regulatory Reform Committee described the Bill as having "the potential to be the most constitutionally significant Bill that has been brought before Parliament for some years." The concerns about the sweeping nature of the powers were also raised by Members from across the House during the Second Reading debate on 9 February.
Under the Bill as drafted, Ministers will be given new powers to repeal, amend or replace practically all primary legislation by means of Ministerial Orders. The Bill will mean that Minister's will be able to make primary legislation without the need to comply with the usual parliamentary procedures. Although Ministers have given commitments not to use these powers for politically controversial legislation, a number of MPs speaking in the second reading debate pointed out that such an undertaking would not bind this Government's successors, unless limitations on the powers and enhancements of parliamentary controls were included in this Bill before it became an Act.
Andrew Miller MP, the Chairman of the Regulatory Reform Committee (the Commons Committee which currently polices the much more restricted powers of Ministers to make primary legislation by Order rather than by using a Bill), says that:
"Last week, we said that it can't be right that Ministers be given such wide and general powers to make any primary legislation. We called for extra safeguards to be inserted into the Bill so we welcome the statement made by Jim Murphy.
"As was made clear in our report and reaffirmed during the Second Reading debate, there is widespread support for removing redundant regulation and costly red tape. But as drafted, the Bill gives too much power to Ministers and is in need of rebalancing in favour of effective parliamentary scrutiny.
"We hope that when the Bill comes out of Committee, it will include proper safeguards. I'm sure that the Government recognizes that and the necessary safeguards will be included in the Bill."
One way of limiting the scope of the Minister's power would be to identify on the face of the Bill certain Acts of Parliament that would be off limits and so could not be repealed, amended or replaced by the proposed fast track Orders.
Notes for Editors:
1) Delegated legislation can be stopped by either House; there is no mechanism for the Commons to override the Lords. At present, there are, broadly speaking, three types of delegated legislation (also called statutory instruments).
Negative instruments: the instrument is laid before Parliament, and Parliament has 40 sitting days in which to object; if it does not do so, the instrument is law.
Affirmative instruments: a draft instrument does not take effect until it has been approved by resolution of each House of Parliament (or, for financial instruments, the House of Commons).
Super affirmative instruments: a preliminary draft is laid before Parliament for 60 days, during which the appropriate committee can consult and take evidence. The Committee then recommends either that the draft should go forward as it stands as an affirmative instrument; that the draft should go forward, but only with amendments, or that it is inappropriate to legislate in this way, either because so Committee rejects the proposals in the preliminary draft, or (more likely) because it thinks they are so important they should be the subject of primary legislation. The government then lays an affirmative draft instrument, and the Committee recommends either that it should be approved or rejected. The amount of time for debate on the instrument varies, according to the nature of the Committee's recommendation, and whether or not it was agreed to on division.
Super affirmatives are instruments which change primary legislation; primarily, Regulatory Reform Orders and remedial orders under the Human Rights Act, which provides a fast track procedure for use when a court has found primary legislation incompatible with convention rights.
The Regulatory Reform Act allows Regulatory Reform Orders only if they relieve a burden on a person or undertaking other than the government, although it allows other burdens to be imposed if they are proportionate to the policy aim, and if the overall effect is to reduce burdens. The government has apparently found this restriction, which is presented in absolute terms, difficult to work with.
2) The Regulatory Reform Committee has the task of examining and reporting to the House on every document containing proposals laid before the House under section 6 of the Regulatory Reform Act and every draft order proposed to be made under section 1 of that Act. The Committee also oversees the operation of the regulatory reform procedure.
3) Since the passage of the Regulatory Reform Act, 27 regulatory reform orders have been made. Copies of all proposals and draft Orders are available on the Cabinet Office website at
4) The Members of the Committee are:
Andrew Miller, Labour, Ellesmere Port & Neston
Gordon Banks, Labour, Ochil and South Perthshire
Mr James Gray, Conservative, North Wiltshire
Stephen Hammond, Conservative, Wimbledon
John Hemming, Liberal Democrat, Birmingham, Yardley
Mrs Sharon Hodgson, Labour, Gateshead East & Washington West
Mr Stewart Jackson, Conservative, Peterborough
Dr Doug Naysmith, Labour Co/op, Bristol North West
Mr Jamie Reed, Labour, Copeland
Bob Russell, Liberal Democrat, Colchester
Alison Seabeck, Labour, Plymouth, Devonport
Mr Andrew Slaughter, Labour, Ealing, Acton & Shepherd's Bush
Ms Angela C Smith, Labour, Sheffield, Hillsborough
Mr Anthony Steen, Conservative, Totnes
For further information on the work of the Committee, contact Mick Hillyard, Clerk of the Committee (020 7219 2830); or see the Committee's website www.parliament.uk/regrefcom
SUMMARY OF RECOMMENDATIONS AND CONCLUSIONS
1. We recommend that, as a matter of urgency, the Cabinet Office should retrospectively assess the estimates of costs and benefits that have previously been submitted to the House for each RRO with a view to establishing whether or not the estimated savings have been realised and that, if the savings cannot be validated, the Cabinet Office should investigate why and suggest how the RIA process or the delivery of benefits itself could be improved. (Paragraph 25)
2. We reaffirm the recommendation of our predecessor Committee that Departments should be assessed on their progress in removing unnecessary regulations and controls and not simply on their progress in simplifying measures. We recommend accordingly. (Paragraph 26)
3. Given the range of views expressed in the consultation submissions, and in the interests of completeness, we consider that the individual submissions be published on the BRE website alongside its brief summary. We recommend accordingly. (Paragraph 35)
4. We invite the House to consider whether the Part 1 of the Bill should be amended to reserve further specified areas from the scope of the new powers (and, if so, to identify the areas to be reserved). (Paragraph 50)
5. We recommend that Part 1 of the Bill should be amended to provide scope for an effective veto, on the following basis:
first, during the preliminary period for procedural consideration, it should be possible -
o for either House of Parliament by resolution, or
o for the relevant committee of either House charged with reporting on the order by recommendation (if not rejected by House resolution),
not only to vary the Minister's recommended procedure on a given draft order, but also to determine that the Part 1 procedure should not apply to it at all;
secondly, if that determination has been made, no further draft order to the same effect (or to the same effect but for modifications) should be laid within two years of the determination date. (Paragraph 59)
6. We invite the House to consider whether - in the case of super-affirmative instruments (however introduced by the relevant Minister) - the Houses or their committees should have their power of suggesting amendments reinforced by a provision to the effect that, if the amendments were agreed by both Houses, the Minister would either have to take the amendments on or discontinue his proposal to legislate by order. (Paragraph 60)
7. We recommend that the Bill should be amended to reinforce Parliamentary procedures in relation to Part 1 orders, so as to reduce the risk of effective scrutiny being by-passed. We offer three options (mutually exclusive in structural terms), in ascending order of preference, for consideration by the House. The first option is closest to the current text of the Bill, the second goes further and the third further still. But none of them fundamentally alters the Bill and none of them extends the scrutiny period beyond what the Cabinet Office states that it needs itself. (Paragraph 65)
8. We invite the House, as a first option, to consider amending Part 1
to change the 21 day time limit (for not following the Minister’s recommended procedure) into a 30 day time limit, and then -
to provide that the parliamentary time limits for consideration of a Part 1 order should be adjustable upwards, with a maximum adjustment of 30 days, on -
o a resolution of either House, or
o a recommendation of the responsible committee of either House (not rejected by such a resolution). - (Paragraph 67)
9. We invite the House to consider, as a second option providing for stronger reinforcement of Parliamentary control, amending Part 1 -
to remove the option of negative procedure,
to merge all time limits into a 60 day limit both for scrutiny and for either House not to follow the Minister’s recommended procedure, and also
to provide that the Parliamentary time limits for consideration of a Part 1 order should be adjustable upwards, with a maximum adjustment of 30 days, on
o a resolution of either House, or
o a recommendation of the responsible committee of either House (not rejected by such a resolution). - (Paragraph 71)
10. We invite the House to consider, as a third option providing for still stronger reinforcement of Parliamentary control, amending Part 1 -
to delete the negative option,
to introduce a default rule of super-affirmative procedure,
to merge all time limits into a 60 day limit (both for scrutiny and for either House not to follow the default procedure), and also
to provide that the Parliamentary time limits for consideration of a Part 1 order should be adjustable upwards, with a maximum adjustment of 30 days, on -
o a resolution of either House, or
o a recommendation of the responsible committee of either House (not rejected by such a resolution). (Paragraph 73)
11. The Cabinet Office's Final Regulatory Impact Assessment in effect addresses four possibilities: doing nothing; altering parliamentary procedures alone; adding extras to the 2001 Act; and providing for radical change by conferring on Ministers a power with no outer limit on coverage, as in Part 1 of the Bill. In summary, this Special Report offers for consideration a fifth possibility: leaving the outer limit on coverage unspecified while identifying areas that should be off limits, as not appropriate for delegated legislation, and also tightening aspects of Parliamentary control. All of the recommendations and issues highlighted for consideration in this section identify ways in which the Bill can be amended at Committee and/or Report Stage in a way that ought to be manageable if the principle of the Bill is accepted by the House. (Paragraph 74)
12. We recommend that the Standing Orders be amended to require the responsible Committee to assess the validity, in relation to any order, of any new preconditions (for example the first precondition: that the policy objective could not be satisfactorily secured by non-legislative means). (Paragraph 77)
13. In order to undertake inquiries into regulation more generally, we recommend that the Standing Orders of any successor committee also include the same powers as those granted to departmental select committees under S.O. No. 152. (Paragraph 78)
14. We recommend that the relevant Committee be able to recommend that no further draft order to the same effect (or to the same effect but for modifications) should be laid within two years. In our view, it is essential that the Standing Orders reflects this provision so that the committee has power to indicate its view on the merits of an order i.e. as to whether an order should be made or not and - in the case of a super-affirmative - whether it should be amended. (Paragraph 81)
15. We also recommend that the current provision, as set out in S.O. No. 18(1)(b), that allows us to trigger a debate on the motion to approve the order be retained and supplemented by a further provision to allow the relevant successor committee to require a debate to be held, if (in the committee's view) a draft order is of sufficient political or legal importance (Paragraph 82)
16. The revisions to the Standing Orders, as recommended, would in our view remove uncertainty and would enhance the power of the committee to scrutinize the draft orders while also providing an opportunity for other Members to debate the orders, regardless of whether they had been scrutinised under the super-affirmative procedure. (Paragraph 84)
17. We recommend that the resource implications of the eventual provisions of any Act for our successor committee be assessed at the earliest opportunity with a view to identifying how best the expected extra workload can be scrutinized effectively.(Paragraph 85)