LEG(2) 14-06 (Document 1)

LEGISLATION COMMITTEE

Legislation Committee | NAFW

Date:	9 May 2006
Time:	9.30 to 10.30
Venue:	Committee room 1, Senedd, Cardiff Bay
Title:	Scrutinising the Executive - Delegated Legislation

 H O U S E o f L O R D SHO U S E o f L O R D SL O N D O NSW1 A 0 PWE - M A I L :h l i n f o @ p a r l i a m e n t . u kT E L E P H O N E :0 2 0 7 2 1 9 3 1 0 7I N T E R N E T :w w w. p a r l i a m e n t . u kSCRUTINISING THE EXECUTIVE - DELEGATED LEGISLATIONWhat is delegated legislation?For practical purposes, and so as not to overload a busy legislature, powers are oftenconferred on the executive (Government) which enable a Minister to make delegated(or secondary) legislation. In the United Kingdom, most Acts of Parliament (primarylegislation) contain such provisions. Delegated legislation, in the form of statutoryinstruments, may be used for example to uprate certain annual grants and benefitswhere the basic rules have been agreed in primary legislation but the rates oramounts need to be altered from time to time.Note: As well as being able to confer delegated powers on the UK executive, Parliament cangrant similar powers to the National Assembly for Wales (instruments to be made by theAssembly are subject to the subordinate legislation procedures under the Government of WalesAct 1998).Statutory instrumentsThere are two main types of statutory instrument: affirmative instruments, whichParliament must expressly approve; and negative instruments, which become lawwithout a debate or vote - but may be opposed, or "prayed against", by a member ofeither House. In both cases, Parliament’s room for manoeuvre is limited. Parliamentcan accept or (theoretically) reject an instrument but cannot amend it. In practice,time for debating statutory instruments is limited.Role of the House of LordsAn important function of the House of Lords is to keep a watchful eye on theactivities of the executive to ensure that it does not exceed or abuse its powers ortake inappropriate powers. Part of this task is undertaken by two of its SelectCommittees:l the Delegated Powers and Regulatory Reform Committee; andl the Merits of Statutory Instruments Committee.These two Committees have complementary functions in that the first examinesdelegated powers in primary legislation and the second examines the secondarylegislation which results from the exercise of those powers.This leaflet describes thework of each.B R I E F I N GThe Delegated Powers and Regulatory Reform CommitteeIn February 1992, the Select Committee on the Work of the House ("the JellicoeCommittee") noted growing disquiet "over the problem of wide and sometimes illdefinedorder-making powers which give ministers unlimited discretion" andrecommended the establishment of a delegated powers scrutiny committee in theHouse.As a result, the Select Committee on the Scrutiny of Delegated Powers wasappointed. Following the passage of the Deregulation and Contracting Out Act 1994,the Committee was given the additional role of scrutinising deregulation proposalsunder that Act and the name of the Committee was changed to the Select Committeeon Delegated Powers and Deregulation. In April 2001, the Regulatory Reform Act2001 was passed which expanded the application of the deregulation order-makingpower under the 1994 Act, and the Committee took on the scrutiny of regulatoryreform proposals under the 2001 Act.The Committee’s name was amended to itspresent form, the Select Committee on Delegated Powers and Regulatory Reform.Role of the Committee in relation to billsThe Committee is required "to report whether the provisions of any billinappropriately delegate legislative power, or whether they subject the exercise oflegislative power to an inappropriate degree of parliamentary scrutiny".TheCommittee’s role is to advise the House of Lords. It is for the House to decidewhether or not to act on the Committee’s recommendations.The Committee itselfhas no power to amend bills, although amendments are frequently tabled in responseto its recommendations.The scrutiny processThe Committee takes evidence in writing on each Public Bill from the relevantGovernment Department. It may also hear oral evidence.The written evidence:l identifies provisions for delegated legislation;l describes their purpose;l explains why the matter has been left to delegated legislation;l explains the degree of parliamentary control provided for the exercise of eachpower (affirmative, negative, or none at all) and why it is thought appropriate.The Committee does not report on Supply Bills, as the Lords do not amend these, andit does not consider Consolidation Bills because they do not seek to introduce newlaw. In examining a bill, the Committee:l considers whether the power to make secondary legislation is appropriate.Thisincludes expressing a view on whether the subject matter is so important that itshould only be regulated by primary legislation;l always pays special attention to "Henry VIII" powers.These provisions enableprimary legislation to be amended or repealed by secondary legislation with orwithout further parliamentary scrutiny;l considers what form of parliamentary control is appropriate and, in particular,whether the proposed power calls for affirmative rather than negative resolutionprocedure.Occasionally the Committee will issue a report on a general matter.At the end of2002, it published a special report on Henry VIII powers (Session 2002-03,HL Paper21).Regulatory reform proposalsThe Committee also scrutinises regulatory reform orders introduced under theRegulatory Reform Act 2001.The House of Commons’ Regulatory ReformCommittee performs a similar function.The two Committees operate independentlybut co-operate closely. Under the 2001 Act, regulatory reform orders may be made bya Minister to amend or repeal primary legislation with a view to removing orreducing burdens. Both Houses must be satisfied that the technical requirements of the2001 Act have been met.There is a two-stage parliamentary procedure:1. First, the proposal, together with explanatory material, is laid beforeParliament in the form of a draft order.The Committee scrutinises theproposal and, within 60 days, reports to the House on it.2. Secondly, the Government lays a draft order before Parliament, either in itsoriginal form or amended (to take account of the views of the Lords’ andCommons’ Committees).The Committee scrutinises the draft order andmakes a second report to the House.The order may then be put before theHouse for approval.The scrutiny processIn considering a proposed regulatory reform order, the Committee asks whether:l its subject matter is appropriate for the regulatory reform order procedure;l it is intra vires (i.e. is the Government entitled to do what is proposed?);l it removes a burden;l "necessary protections" are maintained;l it would prevent anyone from exercising an existing right or freedom whichthey might reasonably expect to continue to exercise;l consultation has been adequate.If an order either re-enacts or creates a burden, further statutory tests apply.Members and working methodsThe Committee has nine members. It takes evidence and meets regularly whenParliament is sitting, according to the legislative workload.As most of its meetings aredeliberative, it usually meets in private. Oral evidence is heard in public, as in otherparliamentary select committees.The Committee issues separate reports on bills andregulatory reform orders.From time to time the Committee publishes a review of its work and workingmethods.The most recent of such reports was published in April 2005 (Session 2004-05,HL Paper 110).The Merits of Statutory Instruments CommitteeIn January 2000, the Royal Commission on the Reform of the House of Lords ("theWakeham Commission" ) recommended that a "sifting" mechanism should beestablished, either by way of a joint committee or a Lords-only committee, to identifythose statutory instruments which were important and merited further debate orconsideration.The Report of the Leader’s Group on the Working of the House,published in April 2002, endorsed the Royal Commission’s recommendation. InDecember 2003, the Lords’ Merits of Statutory Instruments Committee wasappointed. It was re-appointed on 29 November 2004.Terms of referenceThe Committee is required to consider every negative and affirmative statutoryinstrument (or draft statutory instrument) laid before Parliament with a view todetermining whether the special attention of the House should be drawn to it on anyof the following grounds:l that it is politically or legally important or gives rise to issues of public policylikely to be of interest to the House;l that it is inappropriate in view of the changed circumstances since the passageof the parent Act;l that it inappropriately implements EU legislation;l that it imperfectly achieves its policy objectives.The Committee is assisted in its work by an Explanatory Memorandum which theGovernment provides with every affirmative and negative instrument.Role of the CommitteeLike the Delegated Powers and Regulatory Reform Committee, the MeritsCommittee’s role is to advise the House of Lords, and it is for the House to decidewhether or not to act on the Committee’s conclusions.The Committee usuallyreports instruments in a neutral way, rather than taking a stance on the policy.TheCommittee itself has no power to block the passage of a statutory instrument.TheCommittee, in considering the policy implications of instruments, complements thetechnical scrutiny undertaken by the Joint Committee on Statutory Instruments.Members and working methodsThe Committee has 11 members and meets every week when Parliament is sitting.Its meetings are almost invariably deliberative and are therefore almost always held inprivate. Oral evidence sessions are, in accordance with normal parliamentary practice,held in public.A report is issued after every meeting.Further informationThe Committee Office, House of Lords,Westminster, SW1A 0PWTelephone: 020 7219 3130 (Delegated Powers)/8821 (Merits)Fax: 020 7219 2571E-mail: dprr@parliament.uk (Delgated Powers)merits@parliament.uk (Merits)Internet www.parliament.ukNB This material may be reproduced for non-commercial usewithout permission but with acknowledgement.November 2005 © Parliamentary Copyright House of Lords 2005H O U S E o f L O R D S