scrutiny in the house of lords

©Parliamentary copyright 1999H O U S E o f L O R D S

Scrutiny in the House of Lords

Jane WhiteAdviser to the Merits Committee


Primary Legislation


Composition of Parliament

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House of Commons

Conservative

Labour

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House of Lords

Conservative

Labour

Lib Dem

Crossbench

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others


SISISI

Bill ACTamendment

s

amendments

Secondary Legislation


Secondary legislation also called Statutory Instruments

or Delegated Legislation

Exercises powers delegated by the Act Cannot be amended by Parliament Can include SIs, codes of practice, rules,

schemes, orders, regulations … Approx 3,500 per year Published on website http://www.opsi.gov.uk/stat.htm


What and why?

Law made by ministers (or others) under powers given them by Act of Parliament

Why have it?– to make provision at a level of detail

inappropriate for inclusion in the Act– to provide flexibility to meet changing

circumstances– “skeleton” or “framework” bills


Levels of Delegation

Complete Negative instruments

Affirmative instruments

Minister can make law on his own authorityeg closing a road for worksAbout 2,200 per year

Become law after 40 days before Parliamentwithout a debateCan be rejected by a PrayerAbout 1,100 per year

Laid as draftCannot come into effect until both Houses have debated and approved itAbout 200 per year

Can only be amended by another instrument


Delegated Powers and Regulatory Reform Committee

Lords only - 10 members - since 1992 considers whether Bill “inappropriately

delegates legislative power”, … or provides “inappropriate level of

parliamentary scrutiny” Government usually amends Bill in

response to DPRRC’s recommendations


amendmentsamendments

SISISI

JCSI

Bill

Delegated Powers

Committee

ACT

Merits of Statutory Instruments

EU Scrutiny Committees

Scrutiny of secondary legislation


Joint Committee on SIs

7 members from each House Established for 30 + years Technical/legal scrutiny

No ‘unusual or unexpected’ use of powers

Within remit of Act

Legal drafting correct

http://www.parliament.uk/parliamentary_committees/joint_committee_on_statutory_instruments.cfm


Merits Committee Lords only – 11 Members – since 2004 Examines policy intent Considers SI within 12-15 days Reports significant and flawed SIs

Also further information from officials and news items on other SIs

90% of SIs cleared without comment Over 30% of reports lead to debate or questions

• Can call in Minister or officials for evidencewww.parliament.uk/parliamentary_committees/merits.cfm


Merits Committee: Terms of Reference

The grounds for reporting an SI are:

politically or legally important, or gives rise to issues of public policy likely to be of interest

inappropriate in view of changed circumstances since passage of parent Act

inappropriately implements European Union legislation

imperfectly achieves policy objectives


Examples of Reports to HouseMotor Vehicles (Compulsory Insurance) Regulations (SI 2007/1426) adjust the minimum level of insurance cover that users of motor

vehicles must have …to £1,000,000…significantly above the €1,000,000 cover required by the Directive, which we would expect to be approximately equivalent to £660,000 if the normal exchange rate were used. We did not find the Department's justification for this gold-plating persuasive, and we also consider the consultation process to have been inadequate.

Common Agricultural Policy Single Payment and Support Schemes (Cross-compliance) (England) (Amendment) Regulations 2006 (SI 2006/3254)

Summary: These Regulations amend existing arrangements for securing cross-compliance by those receiving direct payments under the Common Agricultural Policy. We continue to be concerned that these arrangements may be unduly complex.


But not always critical

Draft Rail Vehicle Accessibility Exemption Orders (Parliamentary Procedures) Regulations 2008

... We note that the response to the consultation exercise criticised the complexity of the proposals and that, although they have apparently been simplified, they are still intricate. The Department intend to produce guidance for the industry and we hope that this will make the position clearer; the flow chart, printed at Appendix 1, is certainly a step in the right direction.

Tribunals, Courts And Enforcement Act 2007 (Transitional and Consequential Provisions) Order 2008 (SI 2008/2683) and 13 Associated Instruments

…we commend the Department's diligence in pursuing these recommendations for reform and in seeking to find solutions to problems that users have identified.

From Merits Committee 31st Report , session 2007-08


What happens next …

The Lord Avebury – To ask HMG further to the debate on the Asylum (Designated States) (No.2) Order on 24th November (HL Deb cols 1082-12), why statistics on asylum applications from citizens of Ghana and Nigeria where not broken down by gender, as in the 13th Report of the Merits of Statutory Instruments Committee; and whether they will provide a breakdown of the grants of asylum and discretionary leave to remain, according to whether these grant were given on application or gained by appeal. (HL 2638)


The Order Paper: motions Fatal:

Greater London Authority Elections Rules 2000—The Lord Mackay of Ardbrecknish to move, That an Humble Address be presented to Her Majesty praying that the Rules, laid before the House on 8th February, be annulled (S.I. 2000/208).

“I will comply with your request.” Non-fatal:

Baroness Hanham to move that this House calls on Her Majesty’s Government to revoke the Home Information Pack Regulations 2007 (SI 2007/992) to take account of the Report on the Regulations by the Merits of Statutory Instruments Committee and not to lay further regulations concerning Home Information Packs until after full consideration by the Government and Parliament of the pilot schemes and of the representations of stakeholders and consumers. 18th Report from the Merits Committee

Artist’s Resale Right Regulations 2006—The Lord Sainsbury of Turville to move, That the draft Regulations laid before the House on 15th December be approved. [20th Report from the Merits Committee and 14th Report from the Joint Committee]The Lord Brooke of Sutton Mandeville—To move, as an amendment to the above motion, at end to insert “but this House regrets that the Regulations go beyond the requirements of the European Union Directive implementing the regime for the payment of artists and calls for the Regulations to be replaced within six months by Regulations in accordance with the Directive”.


Explanatory Memoranda standard format, no more than 4 pages Plain English; aimed at non-expert Self contained – explains context Includes costs, benefits consultation results, ECHR, legal and policy

EMs published on website alongside the SI

http://www.opsi.gov.uk/stat.htm


EXPLANATORY MEMORANDUM TO THE [TITLE OF INSTRUMENT]

[Year] No. [XXXX]

1. This explanatory memorandum has been prepared by [Name of department] and is laid before [Parliament or the House of Commons] by Command of Her Majesty.

2. Purpose of the instrument – 3 sentences

3. Matters of special interest to the Joint Committee on Statutory Instruments

4. Legislative Context

5. Territorial Extent and Application

6. European Convention on Human Rights

7. Policy background

• What is being done and why

• Consolidation


8. Consultation outcome

9. Guidance

10. Impact10.1 The impact on business, charities or voluntary bodies is …10.2 The impact on the public sector is ...10.3 An Impact Assessment is attached to this memorandum or An Impact Assessment has not been prepared for this instrument.

11. Regulating small business

12. Monitoring & review

13. Contact


The role of the courts– judicial review

“illegality, procedural impropriety and irrationality”

(Boddington v. British Transport Police [1999] 2 AC 143 per Lord Irvine of Lairg LC)

– ultra vires– unreasonable– insufficiently certain– procedural deficiency or irregularity

scrutiny in the house of lords

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