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Scrutiny in the House of Lords

Scrutiny in the House of Lords. Jane White Adviser to the Merits Committee. Primary Legislation. Composition of Parliament. Secondary Legislation. Bill. amendments. ACT. SI. SI. SI. Secondary legislation also called Statutory Instruments or Delegated Legislation.

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Scrutiny in the House of Lords

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  1. Scrutiny in the House of Lords Jane White Adviser to the Merits Committee

  2. Primary Legislation

  3. Composition of Parliament

  4. Secondary Legislation Bill amendments ACT SI SI SI

  5. Secondary legislationalso 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 websitehttp://www.opsi.gov.uk/stat.htm

  6. 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

  7. Levels of Delegation Affirmative instruments Complete Negative instruments Minister can make law on his own authority eg closing a road for worksAbout 2,200 per year Become law after 40 days before Parliament without a debate Can be rejected by a Prayer About 1,100 per year Laid as draft Cannot come into effect until bothHouses have debated and approved it About 200 per year Can only be amended by another instrument

  8. 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

  9. Scrutiny of secondary legislation EU Scrutiny Committees Delegated Powers Committee Bill amendments ACT SI SI SI JCSI Merits of Statutory Instruments

  10. 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

  11. 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 evidence www.parliament.uk/parliamentary_committees/merits.cfm

  12. 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

  13. Examples of Reports to House Motor 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.

  14. 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

  15. 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)

  16. 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”.

  17. 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

  18. Assessment has not been prepared for this instrument. 11. Regulating small business 12. Monitoring & review 13. Contact [Name of contact] at the [Name of department] Tel: [Telephone number] or email: [email address] can answer any queries regarding the • EXPLANATORY MEMORANDUM TO THE [TITLE OF INSTRUMENT] • [Year] No. [XXXX] • 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

  19. 8. Consultation outcome • 9. Guidance • 10. Impact • 10.1 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

  20. 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

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