Parliament explained: delegated legislation House of Lords

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

Lords Scrutiny of Statutory

Instruments

(and how to present your case)Jane White

Legislation Office


Levels of delegation

Complete Negative instrumen

tAffirmativ

e instrumentMinister

can make law on his own authority eg closing a road, commencement orders

Must lay before Parliament for 40 days – can be rejected by a motion

Laid as draft.Cannot come into effect until both Houses have debated and approved it

Can only be amended by another instrument

c.2,200 per year

c. 800 per year c. 150- 200 per

year


Delegated Powers Committee

“whether the provisions of any bill inappropriately delegate legislative power, or

whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny”

Government submits Memorandum explaining the delegations

DPRRC Reports before Bill’s Lords Committee stage

Pays particular attention to: Skeleton Bills

Henry VIII powers


Legal Aid, Sentencing and Punishment of Offenders Bill

2010-12(Gives minister power to set unlimited fines for offenders.)

“There is no explanation of why the Bill itself cannot effect the increases now thought necessary and given the sheer scale of the offences affected this power is inappropriate, despite the affirmative procedure.”


Welfare Reform Bill 2010-12

(power to calculate who is entitled to Universal Credit.)

“We therefore recommend that regulations made under clause 9(3) and 10(4) should also be subject to affirmative procedure on the first exercise of the powers.”


SI

SISI

JCSI

Billamendme

nts

ACT

Secondary Legislation Scrutiny

Committee

After Royal Assent


Secondary Legislation Scrutiny Committee

Considers policy intent Welcomes external comment May publish further

information or correspondence May take oral evidence

Lords’ Affirmative debates are not scheduled until after report published


SLSC: Terms of RefThe 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 insufficient explanatory material inadequate consultation


Outputs of SLSC Report which sets out background and

issues concisely – flagged in Lords Business

Comments within approx14 working days of laying to allow members time to follow up reports.

Information paragraphs E circulation – weekly “news letter” Occasional overarching inquiries

eg Cumulative Burden of SIs on schools, Consultation Principles


What happens next …Questions eg:The Lord Alton of Liverpool – To ask HMG

what measures the Department of Health intends to take to address the comments of the [SLSC’s] 21st report about the quality control system for drafting SIs in the Department; and how they propose to address the Committee’s observation that the drafting errors might have been identified at an earlier stage if the Department had put the proposal out for public consultation. (HL 4757)


Lords Debates on affirmative instruments

• Generally considered in Grand Committee followed by clearance in the Chamber (usually on the nod)

• Debate taken in the Chamber if it is controversial and/or there may be a vote.

• Lords spokesman for the Government presents the case.

• Motions to decline to approve or regret some aspect possible.


Lords Debates on Negative instruments

Negatives not normally debated but any individual Member may table a motion, almost always debated (Chamber or Grand

Committee). Can seek to annul, regret or take note After debate motion withdrawn or pressed to a

vote– successful motion to annul stops legislation

from date of vote (aka “fatal motion”)– other motions show view of the House and

strength of that view.


Take noteLord Kirkwood of Kirkhope: That this

House takes note of the Flexible New Deal (Miscellaneous Provisions) Order 2009 (SI 2009/1562). 12th report from the Merits Committee

– ... This is not an attack or an attempt to annul the order; I am absolutely content with its provisions. However, there are some issues that it would be to the benefit of the House to have raised before the order passes into effect and leaves the parliamentary process entirely....


In the Business BulletinSecondary

Legislation Scrutiny

Committee

To be considered

Waiting for consideration by the Joint Committee on Statutory InstrumentsDraft Social Security (Electronic Communications) Order 2013

Referred to a Grand Committee and Waiting for Affirmative Resolution

Draft Civil Legal Aid (Costs) Regulations 2013 29 March

Export Control (Amendment) (No. 2) Order 2013 24th Report 29 March

Waiting for Affirmative ResolutionDraft Media Ownership (Radio and Cross-media) Order 2013

Draft Employment and Support Allowance (Work-Related Activity) Regulations 2013

24th Report



Explanatory Memoranda standard format, 4-6 pages Plain English; aimed at non-

expert Self contained – explains

context Includes costs, benefits consultation results, ECHR, legal and policy



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 Context5. Territorial Extent and Application6. European Convention on Human

Rights7. Policy background

• What is being done and why• Consolidation

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 published here or An Impact Assessment has not been prepared for this instrument because ...

11. Regulating small business

12. Monitoring & review

13. Contact


EM because the effect of an SI is not always obvious ...

2(b) for Rule 2 and Rule 3 substituteIf the amount of contributions paid in respect of

contracted-out employments exceeds the amount found by the following formula, the amount to be returned is the excess.

53 x [((UAP-PT) x 9.4%) + ((UEL –UAP) x11%)]

Social Security (Contributions) (Amendment No. 3) Regulations

2010


EM2. Purpose of the Instrument

3 sentences Plain English

2.1 These four orders are made under the Proceeds of Crime Act 2002 (c. 29) (“POCA”) , and provide that three revised codes of practice and one new code of practice providing guidance on the exercise of certain functions under POCA come into operation on 1st March 2016. The revised and new codes are required because of amendments to POCA made by the Serious Crime Act 2015 (c. 9) (“the 2015 Act”). They are also required to allow for commencement of amendments to POCA in relation to Northern Ireland made by the Policing and Crime Act 2009 (c. 26) (“the 2009 Act”) and the Crime and Courts Act 2013 (c. 22) (“the 2013 Act”); see also the Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) (Northern Ireland) Order (SI 2015/798). These amendments to POCA extend certain existing functions and create new functions. The commencement date of the orders is the date that the amendments to POCA will be brought into force.


EM4: Legislative Context

Set it in context eg one of a group, implements an Act or Directive, new case law

If specific undertakings were given in debate/ question/Committee give Hansard references

Produce a single EM for a group of linked SIs to prevent unnecessary duplication of common background and ensure reader is aware of linksDo not repeat the powers information from the

regulations or EN


EM7: Policy Background

What this SI does and why Purpose: explain how this fulfils the policy

objectives of the parent Act/Directive Context: what is the current position Effects: on target group, numbers affected,

how Evidence: to support the chosen policy

solution Don’t use jargon or assume knowledge


“7.2 Sir Bruce Keogh recommended this change because the current set of three standards can be confusing …To meet the 90% admitted standard the NHS currently needs to treat nine short waiters …

…for every one over 18 week waiter it treats, or be penalised by financial sanctions in the NHS Standard Contract.”

from the EM to SI 2015/1430


EM 8. Consultation outcome

In EM include – a brief explanation of who was consulted– Explain duration of consultation chosen– Give % analysis of responses and how

Department has accommodated suggestions

Full analysis should also be available at time SI is laid – include DIRECT weblink


EM 10. Impact Assessment

In EM summarise costs and benefits, savings to government and effect on individuals.

Full Impact Assessment also required for:

Any proposal that imposes or reduces costs on businesses or charities

And for significant public sector projects

should also be available at time SI is laid – include DIRECT weblink


“Not Applicable” 8.1 No consultation

was necessary.

10.3 An impact assessment has not been prepared for this instrument.

12.1 No monitoring is planned, or necessary.

8.1 No consultation was needed - the instrument is a technical change required to reflect the reorganisation of probation services.

10.3 There will be no impact on business, ...while the instrument applies to voluntary bodies that operate approved premises, the obligations on them are the same as under the 2008 Regulations.

12.1 Compliance with the instrument will continue to be monitored through contractual arrangements between providers of approved premises and NOMS. As the regulations make no substantive changes, no other monitoring is planned.


EM13: Contact Name, e-mail and phone number

should be given in all casesSpecial provision only where there are security

considerations eg animal rights

Contact arrangements needed for 40 days after SI laid


http://www.parliament.uk/seclegscrutiny


Summary:

Make the caseShow the sumsClear and complete


The southern test area is defined by the postcodes TR,TO, L and EX

…shall be transferred to the Ducky of Lancaster

[DN: we need to fudge the figures before finalising as they don’t currently support our policy]

Government & Nonprofit

Parliament explained: delegated legislation House of Lords