Procedure
Section 12: Procedure: introductory
80.Section 12 sets out procedural requirements for making orders under sections 1 and 2. The Minister must consult on his proposals for an order (section 13). He must then lay a draft order and an explanatory document before Parliament (section 14). The order must be made by statutory instrument in accordance with the negative resolution procedure (section 16), the affirmative resolution procedure (section 17) or the super-affirmative resolution procedure (section 18). Section 15 sets out how the procedure is to be determined. The Minister must recommend in the explanatory document the procedure he considers appropriate. The Minister’s recommended procedure will apply unless either House of Parliament requires a higher level of procedure.
81.Whilst not specifically introduced by section 12, another important aspect of the procedure for orders is that under all three procedures set out in sections 16 to 18, provision is made for an additional mechanism (which might be referred to as a ‘veto’) enabling a committee of either House charged with reporting on an order to prevent the order from being made.
Section 13: Consultation
82.This section sets out the consultation process which the Minister must follow before making an order under this Part. Subsection (1) lists those persons or bodies that the Minister must consult, depending on the subject matter of the proposals and who is likely to be affected by them.
83.Under paragraph (c) the Minister must consult the Assembly where the proposals, to the extent that they apply in or as regards Wales, relate to a matter in relation to which the Assembly has functions. (Note that the requirement does not apply in relation to matters which merely extend as a matter of law to Wales, but which have no practical application there.) However paragraph (c) does not apply to provision which adds to or changes the functions of the Assembly, or restates provision conferring a function upon the Assembly, since in this case section 11 requires the consent of the Assembly.
84.Under paragraph (d) the Minister must consult the Law Commission, the Scottish Law Commission or the Northern Ireland Law Commission in such cases as he considers appropriate. This might be the case when one of the Commissions had relevant experience concerning the subject area affected by the order, perhaps because it was within their current or recent programme of work. Under paragraph (e) there is a general requirement that the Minister consult persons other than those listed in paragraphs (a) to (d) if he considers it appropriate.
85.Subsection (2) specifies that if the Minister varies his proposals as a result of the consultation he has undertaken, then he must carry out such further consultation on the changes he has made as he considers appropriate. The Minister does not therefore have to repeat the whole consultation exercise; the additional consultation is only in respect of those elements of his proposal that he has changed and might involve only those consultees affected by the change.
86.Subsections (3) and (4) are transitional provisions. They deal with consultation which has taken place before the date on which these sections come into force.
87.Subsection (3) is meant to allow for consultation to take place before commencement. If any consultation is undertaken before commencement, and that consultation would to any extent satisfy any of the requirements of section 13, those requirements are, to that extent, taken to have been satisfied. It is not necessary therefore to repeat the consultation.
88.Subsection (4) applies specifically to consultation carried out under the 2001 Act. Where proposals for an order under this Part are the same as proposals for an order under section 1 of the 2001 Act and consultation has been carried out on those proposals in accordance with the requirements of that Act, then consultation will be taken to have been satisfied for the purposes of this section (even where the proposals have been varied following consultation under the 2001 Act and it was appropriate that no further consultation be undertaken). This means that such proposals do not need to be consulted on again.
Section 14: Draft order and explanatory document laid before Parliament
89.This section requires a Minister to lay before Parliament a draft of the order he wishes to make and an explanatory document. The information contained in the explanatory document is intended to assist Parliament in scrutinising the order. The list of matters that must be covered by the explanatory document is given in subsection (2). These include a general requirement for the Minister to give reasons for the provision he wishes to make, an explanation as to why the Minister considers that the preconditions in section 3 are satisfied, and information about the consultation he has undertaken.
90.Where the Minister wishes to make an order under section 1, subsection (2)(d) requires him (so far as it is appropriate) to provide an assessment of the extent to which the provision made by the order would remove or reduce any burden or burdens. The requirement to make and give such an assessment is intended to be proportionate to the nature of the order being made. In some cases the effect of the order will be worthwhile but minor and will not merit a very detailed assessment, in which case a brief statement will be included in the explanatory document to the order. Where appropriate it is expected that requirement under subsection (2)(d) for an assessment of the extent to which the provision would remove or reduce any burden or burdens may be met by quoting the assessment made in an Impact Assessment, or attaching that document to the explanatory document.
91.Subsection (2)(e) requires the Minister to identify and give reasons for any functions of legislating conferred by the order, and the procedural requirements which will have to be complied with when those functions are exercised.
92.Subsections (3), (4) and (5) set out provisions concerning the disclosure of representations made in response to consultation under section 13. Where a person makes representations in response to consultation and asks the Minister not to disclose those representations, the Minister must not disclose them in the explanatory document where such disclosure would constitute an actionable breach of confidence by any person (were it not for Parliamentary privilege). The Minister need not disclose information contained in representations relating to a person other than the consultee if it appears to him that such disclosure could adversely affect the interests of that other person and he has been unable to obtain the consent of that person. It should be noted that subsection (5) provides that these provisions do not affect any disclosure that is requested by, and made to, a Parliamentary committee charged with reporting on draft orders. So even if such information is withheld from the explanatory document, this would not prevent a Minister from providing the information to the Parliamentary committees on request.
Section 15: Determination of Parliamentary procedure
93.This section sets out the procedure for determining which of the three alternative types of parliamentary procedure will apply to an order.
94.Subsections (1) and (2) require the explanatory document laid by the Minister under section 14 to contain his recommendation as to which Parliamentary procedure should apply and his reasons for this recommendation. The level of scrutiny recommended will depend on his view of the complexity and impact of the order, and may be informed by representations on the proposals received during the consultation process.
95.Subsections (3) to (5) provide that the Minister's recommendation for a procedure shall apply unless either House of Parliament requires that a more onerous procedure shall apply.
96.Subsection (6) sets out the two different ways in which a House is taken to have required a particular procedure. A House may require a procedure by resolving (within the period of 30 days beginning on the day on which the draft order was laid before Parliament) that a particular procedure shall apply. If that does not happen, a committee of that House which is responsible for reporting on the order may make a recommendation that a particular procedure should apply, which will take effect unless the recommendation is subsequently rejected by a resolution of the relevant House. In order to be effective in determining which procedure will apply to the order, both the recommendation of the committee and any resolution of the House rejecting it must be made within the period of 30 days beginning on the day the draft order was laid before Parliament.
97.So, if the Minister recommends the negative resolution procedure, this will apply unless, within 30 days, either House requires the affirmative resolution or super-affirmative resolution procedure, in which case that higher level of procedure will apply instead (subsection (3)). Similarly, if the Minister recommends the affirmative resolution procedure, that will apply unless, within 30 days, either House requires the super-affirmative procedure, in which case that will apply instead (subsection (4)). If the Minister recommends the super-affirmative procedure from the start, then that is the procedure that will apply (subsection (5)).
98.In effect, either House is able to require the level of procedure they consider appropriate, although it should be noted that the committees can require a higher, but not a lower, level of procedure. There is no need for both Houses to agree on the necessary level of procedure; a resolution or recommendation from either House is sufficient to increase the level of procedure.
99.Parliamentary scrutiny of orders is currently undertaken by the House of Commons Regulatory Reform Committee and the House of Lords Delegated Powers and Regulatory Reform Committee.
Section 16: Negative resolution procedure
100.This section sets out the procedure which will apply where an order is to be made under the negative resolution procedure. The Minister may make an order in the terms of the draft he laid (allowing for any non-material changes he wishes to make) unless, within 40 days of the draft order being laid, either House of Parliament passes a resolution that the order may not be made. (The ability to make non-material changes to the draft order would permit, for example, the correction of any typographical errors identified by the committees.)
101.When the draft order is laid before Parliament, it is scrutinised simultaneously by a committee of each House charged with reporting to the House on the order. Subsection (4) provides that the relevant committee of either House can, at any time after the expiry of the period of 30 days beginning on the day the draft order was laid before Parliament and before the expiry of the period of 40 days beginning on the day the draft order was laid before Parliament, require that the Minister not make an order in the terms of the draft order, by making a recommendation in those terms. A committee may make such a recommendation on any grounds and, in the event that it does so, the Minister may not make the order unless the recommendation is overturned by a resolution of the relevant House in the same Parliamentary session. This provision (which is mirrored in the affirmative resolution and supper-affirmative resolution procedures) therefore confers the ability on a committee of either House to prevent an order from being made.
102.Where a recommendation made by a committee is subsequently overturned by a resolution of the relevant House, subsection (8) provides that, when calculating the 40-day period, no account is taken of the days between the committee making the recommendation and the House overturning it. This ensures that, should a recommendation of a committee be overturned by the relevant House more than 40 calendar days after the laying of the draft order, each House nevertheless has the opportunity to resolve against the making of the order under subsection (3).
Section 17: Affirmative resolution procedure
103.This section sets out the procedure which will apply where an order is to be made under the affirmative resolution procedure. The Minister may make an order in the terms of the draft (allowing for any non-material drafting changes) only if, after 40 days of the draft order being laid before Parliament, the draft order is approved by a resolution of each House of Parliament. Non-material drafting changes might be necessary as a result of any change of procedure the order was subject to (under the provisions in section 15).
104.When the draft order is laid before Parliament, it is scrutinised simultaneously by a committee of each House charged with reporting to the House on the order. Subsection (3) provides that the relevant committee of either House can, at any time after the expiry of the period of 30 days beginning on the day the draft order was laid before Parliament and before the expiry of the period of 40 days beginning on the day the draft order was laid before Parliament, require that no further proceedings be taken on the draft by making a recommendation in those terms. This recommendation may be made on any grounds and, in the event that a committee makes such a recommendation, no further proceedings may be taken in relation to the draft order unless the recommendation is overturned by a resolution of the relevant House in the same Parliamentary session. Thus, unless overturned, the committee’s recommendation will mean that the House will not proceed to an affirmative resolution and the Minister will therefore be unable to make the order. A committee of either House is thus able to prevent an order from being made.
105.Subsection (7) makes the same provision as section 16(8).
Section 18: Super-affirmative resolution procedure
106.This section sets out the procedure which will apply where an order is to be made under the super-affirmative procedure.
107.This is a two-stage procedure during which there is opportunity for the draft order to be revised by the Minister. During the initial period of 60 days beginning with the day on which the draft order was laid before Parliament, the relevant Parliamentary committees simultaneously consider and may report on the draft order, or either House may make a resolution with regard to the draft order. The Minister must have regard to any such reports and resolutions, as well as to any other representations made about the draft order during the 60-day period. Once the 60-day period has expired, if the Minister wishes to make the order with no changes, he must lay a statement in accordance with subsection (3). He may then make an order in the terms of the draft (allowing for any non-material drafting changes) but only if it is approved by a resolution of each House of Parliament.
108.Alternatively, if the Minister wishes to make material changes to the draft order he has laid, he must lay before Parliament a revised draft of the order and a statement in accordance with subsection (7) specifically setting out the revisions he proposes. (This revised draft order will be considered by committees of both Houses.) The Minister may only make an order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.
109.Non-material drafting changes might be necessary as a result of any change of procedure the order was subject to (under the provisions in section 15).
110.However, subsections (5) and (9) provide that a committee of either House charged with reporting on the order can require that no further proceedings be taken on the draft by making a recommendation in those terms. This recommendation may be made on any grounds and can be made at any time after the laying of a statement in accordance with subsection (3), or after the laying of a revised draft order in accordance with subsection (8), and before the draft order is approved by a resolution of that House. Where such a recommendation is made by a committee, no further proceedings may be taken in relation to the order unless that recommendation is overturned by a resolution of the relevant House in the same Parliamentary session. This means the House will not proceed to an affirmative resolution and the Minister will therefore be unable to make the order. A committee of either House is thus able to prevent an order from being made.
111.Subsection (11) provides that the restrictions on the disclosure of representations made during consultation, which the Minister must make in the explanatory document laid before Parliament under section 14(2)(f), also apply so as to restrict the disclosure of representations made during the initial 60-day scrutiny period of the super-affirmative procedure which the Minister must make in his statement detailing those representations under subsections (3)(b) and (7)(b)(i).
