§ ORDERED TO REPORT:
§ 1. DEREGULATION AND CONTRACTING OUT BILL
§ The Committee referred to a sub-committee the question of the procedures which the House should adopt for making use of the additional opportunity for scrutiny of proposed orders made under Chapter I of the Deregulation and Contracting Out Bill in the event of the relevant provisions being enacted.
§ The Committee has received the report of the sub-committee, which is printed as an Annex to this Report. The Leader of the House has informed the Committee of the tabling of a Government amendment, at report stage in the House of Commons, providing for the 40-day scrutiny period laid down in the Bill as introduced to be extended to 60 days when a committee of either House reports that there are special reasons why it will be unable to complete its consideration within the 40-day period. This does not affect the sub-committee's recommendation (xi) that the period should be 60 days in all cases.
§ The Committee endorses the recommendations in the report, subject to the assumption that Chapter I of the Bill will pass into law.
§ 2. POSTPONEMENT OF BUSINESS WITHOUT NOTICE
§ In its First Report, Session 1984–85, the Committee proposed the introduction on an experimental basis of a procedure for postponing an item of business on the Order Paper without notice until later the same day. The procedure was for the item of business to be called on by the Clerk and then, in the absence of any dissentient voice, for a member of the Government to move that it be postponed to later the same day. Thus the Lord moving the motion would use the formula "My Lords, unless any noble Lord objects, I beg to move …".
§ In its Second Report, Session 1987–88, the Committee returned to the matter and recommended that the experiment should continue.
§ The procedure has since been used once, on 29 March 1990, when it worked smoothly. While it is not expected to be needed often, it is likely to be helpful to the House on those occasions when it is used. The Committee accordingly recommends that the procedure be made permanent, by means of the following amendments to Standing Orders:
§ Standing Order 37
§ At beginning insert "Except as provided in Standing Order No. 40(3),".
§ Standing Order 40
§ At end insert:
§ "(3) Business may, on motion, be postponed to later the same day without notice: provided that the question shall not be put on any such motion if a single Lord objects."
§ 3. EARLY DAY MOTIONS
§ The Committee has considered whether a procedure should be introduced in this House along the lines of the "Early Day Motion" procedure in the House of Commons.
§ That procedure provides an opportunity for members to draw attention to an issue by tabling a motion, normally with no intention of holding a debate on it, and to demonstrate support 333 for a point of view by adding names. In Session 1992–93 (a long Session) there were 2,574 Early Day Motions tabled. The total cost to public funds of printing and publishing Early Day Motions during 1993 has been estimated by Her Majesty's Stationery Office to have been £2,290,000.
§ There are two reasons why the use of such a procedure is less appropriate in this House than in the House of Commons. First, in this House any member may speak to any motion so that points of view are customarily expressed in debate rather than in the terms of motions, which are normally motions for papers or motions to "take note". As the Committee stated in its First Report, Session 1985–86, "the unwritten convention of the House has long been that the wording of such motions should be, so far as possible, short and couched in terms avoiding provocative or tendentious phraseology. The character of such motions has not been understood to inhibit Lords from advancing controversial points of view in the course of debate." In the House of Commons, however, the time of the House, and opportunities for speaking, are more tightly controlled, and the Early Day motion provides back-benchers with a means of expressing a point of view which they might otherwise have no opportunity to express.
§ Secondly, members of the House of Commons have the responsibility of representing their constituents, and Early Day Motions provide a means of raising constituency issues. Members of this House have no similar responsibility.
§ For these reasons, and bearing in mind the cost and practical difficulties of introducing such a procedure, the Committee does not recommend the introduction of Early Day Motions in this House.
§ 4 REFERENCES TO THE EUROPEAN PARLIAMENT
§ The Committee has considered whether there should be any restriction on references in the House to the European Parliament. At present there are restrictions on references to the House of Commons and its members but none in relation to the European Parliament.
§ It appears that no other Parliament has any such restriction, nor does the European Parliament have any restriction on references to other Parliaments. The Committee has accordingly concluded that it would be inappropriate to introduce any formal restriction.
§ 5. AMENDMENTS TO COMMONS PRIVATE MEMBERS' BILLS
§ The Committee has considered the problem which may arise when a Commons private member's bill is before this House and it appears that any amendment made to it may prevent the bill being enacted because of lack of time for the amendment to be considered in the House of Commons.
§ The problem arises because consideration of private members' bills in the House of Commons is normally limited to certain Fridays, and it is necessary for bills to be returned to the Commons before the last such Friday in a session if Lords amendments are to be considered. The Leader of the House has informed the Committee that at his request the Leader of the House of Commons has agreed that the last Friday for private members' bills this session will be 15 July. This is as late as possible before the summer recess and is eight weeks after the previous such Friday on 20 May. This means that there will be adequate time, without any breach of the normal minimum intervals between stages, for any bill passed by the House of Commons by 20 May to complete all its stages in this House in time for amendments to be considered on 15 July.
§ The Committee is grateful to the Leader of the House for his action in dealing with this matter. The Committee would remind Lords who take charge of Commons private members' bills of the need to avoid delay in taking the second reading and subsequent stages so that, in the event of amendments being agreed to, the bills can be returned to the Commons in time. The Public Bill Office is available to offer procedural advice to such Lords in order to ensure that undue delay does not arise inadvertently.
§ The Committee attaches importance to this House having the opportunity to act as a revising chamber in relation to Commons private members' bills and deprecates amendments being resisted 334 on the ground that their acceptance will prevent the bill in question from being enacted. Provided that there is no undue delay, there should be sufficient time to return bills to the Commons in time for amendments to be considered.
§ 6. EFFECT OF FAILURE TO TAKE THE OATH
§ Under the Parliamentary Oaths Act 1866 it is a statutory offence for a Lord to vote or sit during any debate without having taken the oath. The Committee has considered the question whether failure to take the oath invalidates anything done by the Lord concerned.
§ A select committee considered this matter in 1907 but recommended only "that before the opening of a new Parliament a circular be sent to every Peer, calling attention to the grave consequences of sitting or voting in the House without having taken the Oath, and that a similar circular be sent at the beginning of every Session to Peers who are on the list of those Peers who have not taken the Oath." Since then it appears to have been the practice, in those few cases where Lords have voted without taking the oath, to allow the vote to stand and the attendance to be recorded in the Journals.
§ The Committee has been advised that there is a good case in law for treating votes cast in such circumstances as invalid. Earlier Acts which were replaced by the 1866 Act would have invalidated a vote as well as imposing a penalty, and the 1866 Act, in re-enacting the penalty, must implicitly have re-affirmed that voting or sitting before taking the oath is unlawful. On that basis the argument that a vote before taking the oath is invalid remains. Support for this view is provided by the preamble to the 1866 Act, which recites only that it is expedient that one uniform oath should be taken by members of both Houses on taking their seats in every Parliament.
§ The Committee has accordingly concluded that Lords who attend the House without having taken the oath should not be recorded in the attendance lists in the Journals, and that votes cast by such Lords in divisions should be treated as invalid.
§ 7. LAYING OF STATUTORY INSTRUMENTS ON SATURDAYS
§ Standing Order 67 makes provision for statutory instruments to be laid before the House at times when it is not sitting. The hours when they may be deposited include Saturdays, between eleven and one o'clock. There is no corresponding arrangement in the House of Commons, and it appears that no statutory instrument has been laid on a Saturday for some years. A member of staff continues, however, to attend the House on Saturday mornings. The Clerk of the Parliaments has recommended that this should cease.
§ In cases of urgency, the proviso to section 4(1) of the Statutory Instruments Act 1946 allows for statutory instruments to come into operation before they are laid. Moreover, at a time of national emergency, the House would doubtless be recalled anyway, and papers may be laid at any time when the House is sitting.
§ Standing Order 67(2) is at present in the following terms:
§ "(2) For the purposes of this Order, a Statutory Instrument may be deposited on any day except a Sunday, Christmas Day, Good Friday or a bank holiday, between Eleven and One of the clock on a Saturday or Eleven and Five of the clock on any other weekday."
§ The Committee recommends that it be amended to read as follows:
§ "(2) For the purposes of this Order, a Statutory Instrument may be deposited on any day except a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday, between Eleven and Five of the clock."
§ ANNEX: REPORT FROM THE SUB-COMMITTEE ON DEREGULATION ORDERS
§ Introduction
335- (a) The Procedure Committee appointed us just before Easter, with the following task: assuming that Chapter I of the Deregulation and Contracting Out Bill ("the Bill") is passed in more or less its current form, to recommend what special procedures the House might adopt for Orders under Clause 1 ("Deregulation Orders").
- (b) We make no comment as to the merits of the Bill; they will be considered by the House, with assistance from the Delegated Powers Scrutiny Committee. It would however be naive to deny that this report has a political angle: whether the House is content to grant to Ministers the powers set out in Chapter I may depend partly on how far the procedures proposed are seen to safeguard the balance of power between Parliament and the executive.
- (c) We have received assistance in writing from the Leader of the House, Lord Rippon of Hexham (Chairman of the Delegated Powers Scrutiny Committee), the late Bob Cryer MP (Chairman of the Joint Committee on Statutory Instruments, whose tragic death occurred during our inquiry) and the Joint Committee on Statutory Instruments itself, the Department of Trade and Industry (DTI), the Clerk of the Parliaments, Counsel to the Chairman of Committees and the Clerk to the European Communities Committee. We also sought contributions from the Leaders of the Opposition parties, and from Lords at large. We have held discussions with the Leader of the House, Lord Rippon and the Clerk of the Parliaments; and we have noted the report and evidence of the Procedure Committee of the House of Commons on Parliamentary Scrutiny of Deregulation Orders (HC 238), and the Government's response presented on 9th May. We are grateful to all those who have assisted us with our inquiry.
- (d) We note that the Labour Peers support the decision of the Labour Party in the House of Commons not to give evidence to the Commons Procedure Committee on Deregulation Orders, on the ground that the Bill was inherently objectionable; and that the participation of a Labour Lord in this inquiry does not represent any change in that position, but only a wish to ensure that, if the Bill is passed, all possible procedural safeguards will be provided.
§ Deregulation Orders
§ (e) Deregulation Orders will be a special class of affirmative instrument. They may be made by any Minister, to amend or repeal any enactment of primary legislation with a view to removing or reducing any "burden", if the Minister is of the opinion that this can be done "without removing any necessary protection".
§ (f) "Burden" is defined in Clause 1(5) as including a restriction, requirement, condition, fee or sanction. The DTI identified for us four categories of burden: requirements for licensing, requirements to submit information, prescribed fees or time limits, and prescribed administrative procedures. "Necessary protection" is deliberately undefined (Commons Standing Committee F Hansard, 15th February, col. 26).
§ (g) The Bill sets certain limits on the scope of Deregulation Orders. They may not be used in respect of Northern Ireland legislation or Acts passed in future Sessions. There are restrictions on the extent to which they may create or vary criminal offences, criminal sanctions and powers of entry.
§ (h) The Bill also imposes special procedures on a Minister minded to make a Deregulation Order. First, he must consult representatives of affected interests. He must then lay before Parliament a document, containing the proposed text of the Order, and setting out the burden, the necessary protection (if any) and how it is to be preserved, the anticipated cost savings and other benefits, and (subject to confidentiality) the course and outcome of the consultation.
336§ (i) The Bill then provides for a "period for Parliamentary consideration" of 40 days (including weekends but not recesses or sittings for judicial business only) after the laying of the document but before the laying of the final draft Order. It further provides, in Clause 4(4):
§ "In preparing an order… to give effect, with or without variations, to proposals in a document laid before Parliament…, the Minister concerned shall have regard to any representations made during the period for Parliamentary consideration, and in particular, to any resolution or report of, or of any committee of, either House of Parliament with regard to the document."
§ (j) "Have regard to" does not mean "comply with". In Standing Committee in the Commons, the Government undertook to table an amendment to require the Minister to produce with the final draft a statement of any changes arising from the 40-day period (Hansard 24th February, col. 232 & 241); but he could fulfil the requirement to have regard without making any changes at all.
§ (k) When the 40 days are up, the Minister will be free to lay a final draft Order, for approval by resolution of both Houses. Neither Commons Financial Privilege nor the Parliament Acts would apply to Deregulation Orders, any more than to other delegated legislation; the powers of the two Houses in respect of such orders will therefore be theoretically equal.
§ (l) The provisions for a period for parliamentary consideration of a preliminary draft, and for the Minister to have regard to any outcome of that consideration, are unprecedented and form the basis of this report.
§ (m) What procedures are appropriate will depend partly on how the Government use their proposed powers. The DTI regard deregulation as "a continuing process", which may last for years, and have already published 57 proposals for Deregulation Orders, representing 30–35 Orders of between one and ten pages each (Commons Procedure Committee QQ 135, 150). The Government have undertaken "to set up a Whitehall mechanism to … ensure that the Committees are not asked to consider too many proposals at any time" (Government proposals for parliamentary scrutiny, paragraph 6), and to "ensure that sufficient information is provided to the Deregulation Committee to enable it to plan its programme of work" (Government response to Commons Procedure Committee, paragraph 7). Ministers have said that they do not intend to use Deregulation orders to make sweeping or controversial changes, but rather to do the minor things which get crowded out of the primary legislative programme (e.g. Leader of the House of Commons to Commons Procedure Committee, 16th February, QQ 16–19). Brief accounts of the Orders already proposed can be found in the recent DTI publication "Deregulation: Cutting Red Tape".
§ Recommendations
§ (n) On the assumption that Chapter I of the Bill will pass into law, we recommend the following procedures in respect of Deregulation Orders:
§ The period for parliamentary consideration
- (i) The House should refer proposals for Deregulation Orders to a Select Committee ("the Committee").
- (ii) The Committee should in the first instance be the Delegated Powers Scrutiny Committee. That Committee is in being; it is willing to take on this additional task; should this arrangement at some later stage prove unsatisfactory, the task might be transferred to a new Select Committee.
- (iii) The terms of reference for the new task should be broad, leaving it to the Committee to establish a modus operandi. Proposed terms of reference are in the Appendix.
- (iv) The Committee should have power to co-opt, to set up Sub-Committees and to appoint Specialist Advisers.
- (v) The composition and chairmanship of the Committee should remain a matter for the Committee of Selection under SO 61.
- (vi) In order that its work should not be unduly interrupted by Prorogation, the Committee should be a Sessional Committee for the purpose of SO 62.
- (vii) As with any Select Committee under SO 63, Lords not named of the Committee or co-opted should be permitted to take part in the taking of evidence, but not in deliberation except by invitation, and not in voting.
- (viii) The Committee has power under SO 64 to take evidence; it should be expected—though not instructed—to offer the Government a chance to give evidence before making an adverse report.
- (ix) The Committee should be expected to develop close co-operation with the corresponding Commons Committee. It has power under SO 64A to meet concurrently or to empower a Sub-Committee to meet concurrently; it should be expected to use this power when appropriate.
- (x) The House must have the option of debating the Committee's reports within the period for parliamentary consideration. It is not to be expected that this would often be done since the House would normally accept the Committee's advice, but the final word must rest with the House, not the Committee, and Clause 4(4) of the Bill explicitly allows for a resolution of the House within the period.
- (xi) The Bill should be amended to provide 60 days for parliamentary consideration rather than 40. In cases where evidence is called for, 40 days will not be enough, especially if the House is to have an opportunity to debate the report; and Deregulation orders by their nature are unlikely to be urgent The Commons Procedure Committee recommended an optional extension to 60 days by order of the Leader of that House on application from the Committee, and the Government have accepted that recommendation "in principle". We recommend instead a general extension to 60 days: this will be easier to put into the Bill and more straightforward to operate.
§ After the prescribed period
§ (xii) Final drafts of Deregulation Orders should be referred to the Committee for a further report.
§ (xiii) For economy of effort, final draft Deregulation Orders should be excluded from the terms of reference of the Joint Committee on Statutory Instruments; the JCSI's functions in respect of such Orders should be given instead to the Committee which should have the assistance of Counsel currently afforded to the Joint Committee. (The House of Commons Procedure Committee has recommended similar action, and the Joint Committee has agreed; the Government "is minded to accept the recommendation". As it happens, Counsel who currently advises the Joint Committee on affirmative instruments already also advises the Delegated Powers Scrutiny Committee.) SO 69 should be amended to provide that no motion to approve a final draft Deregulation order may be moved until the Committee has reported on it.
§ (xiv) It should be open to any Lord to table a motion in respect of the report of the Committee on the draft Order. Such a motion should be placed on the Notice Paper immediately before the Minister's motion to approve the draft Order (this would require amendment of SO 38), and would be amendable; the two motions should be debated together. If the outcome were a resolution of the House to the effect that the Order should not be approved, the motion to approve the Order should not be moved, though without prejudice to the right of the Minister to bring his proposals back before the House in the form of a Bill.
§ Review
§ (xv) The Procedure Committee should review the new procedure after a year.
§ APPENDIX: TERMS OF REFERENCE
§ To consider any proposal for an Order laid under section 3(3) of the Deregulation and Contracting Out Act 1994 and to report whether it should proceed as proposed, or with variations or not at all;
§ To consider any draft Order laid under section 1(4) of the Act and to report whether any motion to approve it should be agreed to;
338§ And to perform in respect of such an Order the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.