Passage of Secondary Legislation through the House of Lords. April 25 2013

1. HO U S E o f LO R D S
aka Subordinate Legislation
aka Delegated Legislation
aka Statutory Instruments
aka SIs, Orders, Regulations ...
Legislation Office
April 2013
Secondary Legislation

2. HO U S E o f LO R D S
Volume of delegated legislation
In 2009
Acts of Parliament – 27
UK Statutory Instruments – 2008

3. HO U S E o f LO R D S
Levels of Delegation
Complete Negative
instrument
Affirmative
instrument
Minister can
make law on
own authority
eg closing a
road or
commenceme
nt orders
Must lay
before
Parliament
for 40 days –
can be
rejected by a
motion
(“Prayer”/EDM
)
Laid as
draft.
Cannot
come into
effect until
both
Houses
have
debated
and
approved it
Can only be amended by another
instrument
2,000 per year 700 per year 150- 200 per
year
Affirmative
“plus”
Affirmative
with
additional
tests set out
in Act
eg Public
Bodies
Order, LRO
30 per year ???
Limited
amendments
possible

4. HO U S E o f LO R D S
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”
Dislike
Skeleton Bill
Henry VIII
Government submits Memorandum seeking
permission
DPRRC Reports before Bill’s Committee stage

5. HO U S E o f LO R D S
Welfare Reform, 2010-12
(power to calculate who is entitled to Universal
Credit. Wrong level of Parliamentary control)
“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.”

6. HO U S E o f LO R D S
What happens when they
arrive in Parliament?

7. HO U S E o f LO R D S
Laying of instruments
Instrument laid in PPO and Vote
Office (on same day)
with an Explanatory Memorandum that
sets out in plain English what the
instrument does and why
may also have
– Impact Assessment on costs and benefits
– Transposition Note – if implementing EU
legislation

8. HO U S E o f LO R D S
www.legislation.gov.uk

9. HO U S E o f LO R D S
Secondary Legislation Scrutiny
Committee
Considers policy intent
Usually reports on SIs within 12-16
days of instrument being laid – to
allow Members to follow up
reports
May seek further information or
correspondence (delay of 1 week)
– material usually published.
Also takes oral evidence
Affirmative debates are not
scheduled until after report

10. HO U S E o f LO R D S
SLSC: Terms of Ref
The grounds for reporting an SI are that it is:
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

11. HO U S E o f LO R D S
Examples of Reports to House
Tobacco Advertising and Promotion (Display and Specialist Tobacconists)
(England) (Amendment) Regulations 2011 (SI 2011/1256)
The two policy aims of the Regulations are ... to mitigate burdens on
business "while maintaining the expected public health gains." If the
figures set out in the Impact Assessment to the Health Act 2009 are
taken as the baseline it would appear that a deferment of 18 months may
result in up to 4,000 more young people taking up smoking with
consequent long-term health effects. On the basis of the ...minimal
information provided in the EM, the House may wish to seek further
explanation from the Health Minister on how these Regulations will
achieve both policy objectives.
Merits Committee 32nd Report, session 2010-12
But not always critical
National Health Service (Primary Dental Services) (Miscellaneous
Amendments) Regulations 2011 (SI 2011/1182)
... we commend the Department of Health's clear Explanatory
Memorandum and its approach of piloting to enable it to take policy
decisions on the basis of evidence from practical experience.
Merits Committee 31st Report, session 2010-12

12. HO U S E o f LO R D S
Example of an information paragraph
AUDIOVISUAL MEDIA SERVICES REGULATIONS
(SI 2009/2979)
4. This instrument ... extends the coverage of the existing
Television without Frontiers Directive to other media, for
example satellite, up-link or the internet, and to include on-
demand programmes such as the iPlayer services... The AVMS
Directive also allows Member States to decide whether to permit
product placement in broadcasting: the Government currently
permits product placement in on-demand services and when
incorporated in films originally made for the cinema, but is
consulting further on whether on nor to permit product
placement more widely in television broadcasting.[web link]

13. HO U S E o f LO R D S
Debates on affirmative
instruments
in the Lords
Generally debated in Grand Committee (taken in the
Chamber if it is controversial and/or there may be a
vote). Lords spokesman for the Government presents
the case.
Formal clearance follows in main Chamber of both
Houses (usually on the nod)

14. HO U S E o f LO R D S
In the Business BulletinSecondar y
Legislation Scrutiny
Committee
To be considered
Waiting for consideration by the Joint Committee on Statutory Instruments
Draft 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 Resolution
Draft Media Ownership (Radio and Cross-media) Order 2013
Draft Employment and Support Allowance (Work-Related Activity) Regulations
2013
24th Report
Draft Orders reported from the Secondary Legislation Scrutiny Committee under
the enhanced affirmative procedure
Scrutiny period expires
Draft Public Bodies (Abolition of Administrative Justice and Tribunals Council)
Order 2013, 15th report from the Joint Committee on Statutory Instruments, 25th
Report from the Secondary Legislation Scrutiny Committee
16 March

15. HO U S E o f LO R D S
Debates on negative instruments
Normally becomes law without discussion but
in the Lords: Any Member may table a prayer
motion, almost always debated (Chamber or Grand
Committee). Can seek to “annul”, “regret” or simply
probe:
Lord 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. ...

16. HO U S E o f LO R D S
In the Business Bulletin
Negative Instruments
Instruments reported by the Secondary
Legislation Scrutiny Committee
Praying time expires To be considered
24th Report
Immigration (Designation of Travel Bans) (Amendment) Order 2012 27 April
Libya (Asset-Freezing) Regulations 2012 30 April
26th Report
Accession (Immigration and Worker Registration) (Revocation, Savings and
Consequential Provisions) Regulations 2012
7 May

17. HO U S E o f LO R D S
2(b) for Rule 2 and Rule 3 substitute
If 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
EM because the effect is not always
obvious!

18. HO U S E o f LO R D S
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
• 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 attached
to this memorandum or An Impact
Assessment has not been prepared for
this instrument.
11. Regulating small business
12. Monitoring & review
13. Contact

19. HO U S E o f LO R D S
2. Description
 3 sentences PLAIN ENGLISH
 This Order makes supplementary and transitional provision in respect of
new provisions regarding police authority membership which are being
commenced under the Police and Justice Act 2006 (“the 2006 Act”). The
new regime will come into operation, in the case of police authorities
established under section 3 of the Police Act 1996, on 1 April 2008 and,
in the case of the Metropolitan Police Authority, on 3 July 2008. This
Order ensures that, until that new scheme comes into operation, existing
lay justice members of police authorities in England and Wales whose
appointments would otherwise expire on or after 15 January 2007 shall
have their appointments extended until 31 March 2008 or, in the case of
the Metropolitan Police Authority, 2 July 2008.
 This Order makes transitional provisions to extend existing lay justice
appointments to police authorities until the new scheme under the Police
and Justice Act 2006 takes effect in
2008.

20. HO U S E o f LO R D S
4. Legislative Context
Why is the SI being made
– 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 links
Do not repeat the powers information from the
regulations

21. HO U S E o f LO R D S
EM7: Policy Background
What this SI does and why
How this instrument fulfils the policy objectives of
the parent Act/Directive
Evidence to support the chosen policy solution
(including why legislation is necessary)
Don’t use jargon or assume too much knowledge
of the context eg ODN (Ordnance Datum Newlyn), Snellen Scale

22. HO U S E o f LO R D S
EM8:Consultation outcome
Include a brief explanation of who was
consulted
If consultation was less than 12 weeks explain
why
Give % analysis of responses and how
Department has accommodated suggestions
Full analysis should be available at time SI
is laid – include weblink – but this cross
reference is in addition to above, not instead
of.
Helpful: see Code of Practice on Consultation
http://www.bis.gov.uk/policies/better-regulation/consultation-guidance

23. HO U S E o f LO R D S
EM 10. Impact Assessment
Full Impact Assessment required for:
Any proposal that imposes or reduces costs on
businesses or charities
And for public sector, unless the costs fall
beneath £5m
– includes proposals that redistribute
administrative costs.
– If high levels of political or media interest, a full
IA is required, even if the total cost is below £5
million.
Summary in EM, full IA attached, signed by
a Minister or
Explanation of why IA not required and
indicative costs

24. HO U S E o f LO R D S
13. Contact
Name, e-mail and phone number should
be given in all cases
Only exemption is where there are
security considerations eg animal rights
Make sure named contact is
there for 40 days after SI laid

25. HO U S E o f LO R D S