Scrutiny in the House of Lords Jane White

Scrutiny in the House of Lords Jane White Adviser to the Merits Committee HOUSE of LORDS ©Parliamentary copyright 1999

Primary Legislation HOUSE of LORDS ©Parliamentary copyright 1999

Composition of Parliament HOUSE of LORDS ©Parliamentary copyright 1999

Secondary Legislation amendments Bill ACT SI SI HOUSE of LORDS SI ©Parliamentary copyright 1999

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 HOUSE of LORDS ©Parliamentary copyright 1999

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 HOUSE of LORDS ©Parliamentary copyright 1999

Levels of Delegation Negative instruments Complete Minister can make law on his own authority eg closing a road for works About 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 Affirmative instruments Laid as draft Cannot come into effect until both Houses have debated and approved it About 200 per year Can only be amended by another instrument HOUSE of LORDS ©Parliamentary copyright 1999

HOUSE of LORDS ©Parliamentary copyright 1999

HOUSE of LORDS ©Parliamentary copyright 1999

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 HOUSE of LORDS ©Parliamentary copyright 1999

Scrutiny of secondary legislation EU Scrutiny Committees Delegated Powers Committee amendments Bill ACT SI JCSI HOUSE of LORDS SI SI Merits of Statutory Instruments ©Parliamentary copyright 1999

Joint Committee on SIs 7 members from each House Established for 30 + years Technical/legal scrutiny Ø No ‘unusual or unexpected’ use of powers Ø Within Ø Legal remit of Act drafting correct http: //www. parliament. uk/parliamentary_committees/joint_committee_on_statutory_instruments. cfm HOUSE of LORDS ©Parliamentary copyright 1999

Merits Committee Lords only – 11 Members – since 2004 Examines policy intent Considers SI within 12 -15 days Reports significant and flawed SIs Ø Also further information from officials and news items on other SIs Ø 90% of SIs cleared without comment Ø Over 30% of reports lead to debate or questions • Can call in Minister or officials for evidence www. parliament. uk/parliamentary_committees/merits. cfm HOUSE of LORDS ©Parliamentary copyright 1999

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 HOUSE of LORDS ©Parliamentary copyright 1999

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…significantly above the € 1, 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. HOUSE of LORDS ©Parliamentary copyright 1999

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 31 st Report , session 2007 -08 HOUSE of LORDS ©Parliamentary copyright 1999

What happens next … The Lord Avebury – To ask HMG further to the debate on the Asylum (Designated States) (No. 2) Order on 24 th 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 13 th 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) HOUSE of LORDS ©Parliamentary copyright 1999

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 8 th 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. 18 th 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 15 th December be approved. [20 th Report from the Merits Committee and 14 th 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”. HOUSE of LORDS ©Parliamentary copyright 1999

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 HOUSE of LORDS ©Parliamentary copyright 1999

HOUSE of LORDS ©Parliamentary copyright 1999

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 1. • Consolidation HOUSE of LORDS ©Parliamentary copyright 1999

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 HOUSE of LORDS ©Parliamentary copyright 1999

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 HOUSE of LORDS ©Parliamentary copyright 1999

HOUSE of LORDS ©Parliamentary copyright 1999