Session 2005-06 6 February 2006
Attn: News Desks
Parliament and Political Correspondents
Embargoed: Not for Publication or Broadcast until 00.01 hrs, Monday 6 February 2006
EXTRA SAFEGUARDS NEEDED FOR BILL THAT GIVES MINISTERS NEW FAST TRACK OPTION TO MAKE LEGISLATION- REGULATORY REFORM COMMITTEE
The Legislative and Regulatory Reform Bill, which will have its Second Reading in the Commons on Thursday 9 February, has been described by an influential Select Committee as having
"the potential to be the most constitutionally significant Bill that has been brought before Parliament for some years."
Part one of the Bill, which is the focus of a Special Report by the Regulatory Reform Committee, will provide Ministers with a fast track procedure that would allow them to repeal, amend or replace all types of primary legislation (with very few exceptions). If the Bill is approved as drafted, Ministers will be able to make changes to primary legislation by means of a Ministerial Order, which does not involve the detailed process of second readings, committee and report stages in both Houses.
The Special Report by the Regulatory Reform Committee on Part one of the Bill had to be completed in less than three weeks to be available to the Commons in time for the Bill's Second Reading.
The Government sees the fast track procedure proposed under the Bill as an important part in its efforts to remove redundant legislation and increase the pace of regulatory reform.
The Chairman of the Committee, Andrew Miller MP, says that:
"This Bill must be scrutinised with particular care. Our report recognises that there is widespread support for removing redundant regulation and costly red tape. But the problem many people will have with Part one of this Bill, as drafted, is that it provides Ministers with a wide and general power that could be used to repeal amend or replace almost any primary legislation.
"That can't be right. We need extra safeguards.
"What we've done in our report is to recommend extra safeguards to be put in the Bill, which if accepted, would I believe achieve the Government's objectives in manner acceptable to Parliament."
One recommendation in the report for rebalancing the Bill in favour of Parliament is to identify on the face of the Bill certain legislation that would be off limits and so could not be repealed, amended or replaced by the proposed fast track Orders.
Other recommendations in the report include giving the Committee with responsibility for scrutinising the Orders the power to amend the Orders; to veto Orders that it considers should be made by the usual Bill procedure; and the power to vary the time available for Parliamentary scrutiny.
The report also critically analyses the arguments put forward by the Cabinet Office for requiring such sweeping powers. The Committee calls for the estimates of cost and benefits previously produced for each Regulatory Reform Order to be validated. It also calls for the individual submissions to the Cabinet Office's recent consultation to be published on the Department's website alongside it own brief summary.
Andrew Miller added:
"Our report demonstrates that the current Parliamentary procedures are not responsible for delaying Regulatory Reform Orders. Our evidence shows that Departments themselves are slow in identifying the unnecessary regulations, in bringing the proposals for Orders to Parliament and in making the Orders once Parliament has made its recommendation on individual reforms. We hope the Government will accept the need for Departments to be assessed annually on their progress in removing unnecessary regulations"
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 http://www.cabinet-office.gov.uk/regulation/rra/rro/proposals.asp
4) The Members of the Committee are:
Andrew Miller, Labour, Ellesmere Port & Neston (Chairman)
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)