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Regulatory Reform Act 2001

Order-making process

13.The order-making process for regulatory reform orders is based on, and is very similar to, the process for deregulation orders. Orders are subject to thorough public consultation followed by detailed two-stage scrutiny by the scrutiny committees, currently the Deregulation and Regulatory Reform Committee in the House of Commons and the Delegated Powers and Regulatory Reform Committee in the House of Lords.

14.The special Parliamentary procedure which orders will undergo (sometimes called the “super-affirmative” procedure, a term first coined by the House of Commons Procedure Committee in its 1995 Report on Delegated Legislation (HC 152)) affords a greater degree of Parliamentary scrutiny than that which ordinary affirmative resolution orders receive. First, the Minister lays his regulatory reform proposal before Parliament “in the form of” a draft order together with a full explanatory document. Following the 60 day period of Parliamentary consideration, during which time the proposal is referred automatically and simultaneously to the Committees appointed by Parliament for the purpose, the Committees make their first report to their respective Houses. If the reports are favourable, the next stage is for the Minister formally to lay a draft order in each House, along with an explanation of any changes made compared to the earlier proposal. If the Minister is minded to accept any changes that are proposed to the draft order by the Committees or others between this stage and the final vote on the order, he must formally take up the draft order he has laid and replace it with another which incorporates the changes.

15.The ability to make changes (minor or otherwise) to the draft order while it is being scrutinised and in response to the scrutiny is a key feature of the order-making power, which is not available to statutory instruments dealt with in the usual way. Ministers in charge of past deregulation orders have on several occasions taken the opportunity to change their draft order in line with recommendations from the Committees. On no occasion did any Minister ignore an adverse report on a proposed deregulation order from either Committee; the proposed order was always re-cast or withdrawn accordingly. The Government intends to continue this practice in its use of regulatory reform orders, and Ministers re-affirmed this intention on a number of occasions during debate on the Bill (see Annex C).

16.The final procedural stages for Parliamentary scrutiny of draft regulatory reform orders are set out in Standing Orders (reproduced at Annex A). The Commons Committee produces a report on the draft order within 15 days. The Lords Committee has no set time period but usually reports within the same time period. Both Houses then consider the relevant Committee report on the draft order (this is the main feature that distinguishes this form of Parliamentary consideration as “super-affirmative”).

17.The procedure leading up to the final vote on the order differs in the two Houses:

  • In the Commons, the final procedural stages for draft orders depend on the nature of the report of the Deregulation and Regulatory Reform Committee, and are set out in House of Commons Standing Order No 18 (Consideration of deregulation orders, etc), as reproduced at Annex A. This requires that no motion to approve a draft order shall be made in cases where the Committee has reported that the draft order should not be approved “unless the House has previously resolved to disagree with the Committee’s report.” If Committee members agreed without a division that the draft order should be approved, the Motion to approve it is put to the House forthwith. If they voted to approve the draft order following a division of the Committee, there is a debate on the draft order lasting a maximum of one and a half hours, after which the Motion to approve the draft order is put. If the Committee recommended that the order should not be approved, and the Minister still wishes to pursue the order, he is faced with two options: either he may take up the draft order and replace it with an amended draft, or he may table a Motion to disagree with the Committee report. The latter has never occurred in proceedings on a deregulation order. If it were to happen, the debate on the Minister’s Motion, which would be amendable, would last a maximum of 3 hours. If the House supported the Minister’s Motion, a Motion to approve the draft order would be put forthwith.

  • In the Lords, following the publication of the Committee's second report, the Minister tables a Motion that the House should approve the draft order. There is also the opportunity for a debate, if any peer wishes it, on an accompanying motion at the same time as the motion to approve a draft order. The companion motion is moved first and can be amended and voted on. There is a Government undertaking that, in the event of a motion hostile to a draft deregulation order being agreed to by that House, the motion for the draft order would not be moved (House of Lords Hansard, 20 October 1994, col. 352). This commitment was repeated during the Lords Committee stage (see Annex C).

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Explanatory Notes

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