Scrutiny of Regulatory Reform Orders


The Legislative and Regulatory Act, which was passed on 8 December, comes into effect on 8 January. Under the new Act, Ministers will be able to lay draft Regulatory Reform Orders before Parliament that amend a whole range of primary legislation. Some of the proposed changes may be controversial.

The Government has set out how it would like the draft Orders laid under the new legislation to be scrutinised in the Commons.

The influential Regulatory Reform Committee has examined these proposals and has raised a number of concerns, including the lack of an opportunity for Parliament to debate the proposed changes to primary legislation that are legally or politically important. The Committee has called for amendments to be made to the Government's plans for how Parliament will scrutinise the draft Orders.

Andrew Miller MP, the Chairman of the Regulatory Reform Committee, says that:

"The Legislative and Regulatory Reform Bill was radically amended by the Government during its progress through the Commons. As the Committee that led the scrutiny of that Bill, the Regulatory Reform Committee was pleased that the Government finally accepted its suggestions and improved the Bill.

"We have now turned our attention to the Government's plans for how Parliament will scrutinise the draft Orders in the Commons.

"We publish our findings today in our special report. One of the most important recommendations is for us, as the Committee tasked with scrutinising these draft orders in the Commons, to be given the power to secure a debate when we consider the changes to primary legislation to be of sufficient legal or political importance to warrant a debate.

"We believe that Members should be given an opportunity to debate proposed changes to primary legislation that are legally or politically important. It is illogical to expect Members not to be given such an opportunity, especially if such proposed changes affect their constituents.

"We make a number of other recommendations to improve the scrutiny of these draft Orders. The general thrust of our special report is that Parliament should be able to scrutinise and debate important changes to legislation."

The Committee's report is to be published as its First Special Report of the 2006-07 Session at 10.30 am on 15 December 2006. It will be available from all Stationery Office outlets (Ref HC 160).

The text of the report will also be available on the Committee's website from 3.30 pm on the day of publication. (www.parliament.uk/regrefcom)

Notes for Editors:

The Regulatory Reform Committee has the task of examining and reporting to the House on draft Orders laid under the Regulatory Reform Act 2001 and Legislative and Regulatory Reform Act 2006.

Pat McFadden MP, Parliamentary Secretary, Cabinet Office, has proposed some new Standing Orders for how draft Orders to be laid under the Legislative and Regulatory Reform Act 2006 should be scrutinised by Parliament. Draft Orders that will be laid under the new legislation will be subject to one of three procedures:

negative resolution procedure: Where the Minister has recommended the negative resolution procedure, and the Committee and/or the House have accepted that recommendation, after 40 days from the date on which it was laid has passed, the Minister may proceed to make an order in the same terms as the draft order unless, before that period has expired, either the Committee or the House as a whole has resolved that the draft order should not become law.

affirmative resolution procedure: If the Minister, when laying a draft regulatory reform order, has recommended the affirmative procedure should apply (or the Committee has so recommended and its recommendation has not been challenged or has been upheld within the 30-day period) then after the end of the 40-day period a Minister may move a motion in each House to approve the draft order. However, between the 30-day and 40-day point the Committee may recommend no further proceedings should take place on the order. If it does so, no motion may be moved to approve the draft order unless the House has agreed, on a motion moved by a Minister, to reject the Committee's recommendation.

super-affirmative resolution procedure: If the Minister recommends that the super-affirmative procedure should apply to a draft order, or the Committee so recommends and its recommendation is not rejected, then the period for consideration of the draft is extended to 60 days. This provides for the Committee, the Lords committee, and others with an opportunity to make detailed comments on the draft order and to propose amendments. After the end of the 60-day period, the Minister must, if he wishes to proceed with the draft order, lay a further statement before Parliament explaining what account he has taken of representations received from the Committees of either House or others, or any resolution of either House, made within the 60-day period. Alternatively, he may lay a revised version of the draft order taking into account such representations in the form of amendments to the original draft, together with an explanatory statement. A motion to approve the draft order, or revised draft order, may then be moved in each House. If, however, the Committee recommends that the draft order, or revised draft order, be not further proceeded with, then no motion may be moved unless the House has first agreed to reject the Committee's recommendation.

Since the passage of the Regulatory Reform Act, 29 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

The Members of the Committee are:

Andrew Miller, Labour, Ellesmere Port & Neston (Chairman)
Gordon Banks, Labour, Ochil and South Perthshire
Lorely Burt, Liberal Democrat, Solihull
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
Alison Seabeck, Labour, Plymouth, Devonport
Mr Andrew Slaughter, Labour, Ealing, Acton & Shepherd's Bush
Ms Angela C Smith, Labour Co/op, 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


1. We recommend that the draft Standing Orders be amended to provide us with the power to refer Orders for debate in Delegated Standing Committees that we consider to be of sufficient legal and political significance without having to divide or contrive a division. For draft Orders that we do not approve unanimously, we recommend that our current procedures continue and that any subsequent motion made by a Minister of the Crown to approve such draft Orders should be debated for up to one and a half hours on the floor of the House.

2. We recommend that Subordinate Provisions Orders should continue to be scrutinised in the Commons by our Committee as now and the draft Standing Orders be amended accordingly.

3. We recommend that the wording in 141(3b and 3c) be changed from the subjective to the more objective. This amendment also has the added advantage of providing a better match with the tests set out in the Act.

4. We envisage that we will always report within 15 days when there are no new second stage issues to consider, but for revised Orders we can only report as promptly as is reasonably possible. We recommend that the draft Standing Orders be clarified accordingly by amendment.

5. We recommend that the Standing Order 141(13) be deleted.

6. We recommend that the working of the LRRA 2006 be reviewed within three years and that the review include a genuine validation of any costs and benefits or Regulatory Impact Assessments that are produced in support of all draft Orders; and that the Government report its findings to Parliament.

7. It is imperative therefore that the House and the Department of the Clerk are able to respond speedily to any significant increase in activity. In the first instance, we would expect to be able to draw on staff in the Scrutiny Unit to be seconded in relation to specific Orders or stages of them, so as to provide assistance to the regular staff advising the Committee.