Commentary on Sections Procedure Section 15: Determination of Parliamentary procedure
93.This section sets out the procedure for determining which of the three alternative types of parliamentary procedure will apply to an order.
94.Subsections (1) and (2) require the explanatory document laid by the Minister under section 14 to contain his recommendation as to which Parliamentary procedure should apply and his reasons for this recommendation. The level of scrutiny recommended will depend on his view of the complexity and impact of the order, and may be informed by representations on the proposals received during the consultation process.
95.Subsections (3) to (5) provide that the Minister's recommendation for a procedure shall apply unless either House of Parliament requires that a more onerous procedure shall apply.
96.Subsection (6) sets out the two different ways in which a House is taken to have required a particular procedure. A House may require a procedure by resolving (within the period of 30 days beginning on the day on which the draft order was laid before Parliament) that a particular procedure shall apply. If that does not happen, a committee of that House which is responsible for reporting on the order may make a recommendation that a particular procedure should apply, which will take effect unless the recommendation is subsequently rejected by a resolution of the relevant House. In order to be effective in determining which procedure will apply to the order, both the recommendation of the committee and any resolution of the House rejecting it must be made within the period of 30 days beginning on the day the draft order was laid before Parliament.
97.So, if the Minister recommends the negative resolution procedure, this will apply unless, within 30 days, either House requires the affirmative resolution or super-affirmative resolution procedure, in which case that higher level of procedure will apply instead (subsection (3)). Similarly, if the Minister recommends the affirmative resolution procedure, that will apply unless, within 30 days, either House requires the super-affirmative procedure, in which case that will apply instead (subsection (4)). If the Minister recommends the super-affirmative procedure from the start, then that is the procedure that will apply (subsection (5)).
98.In effect, either House is able to require the level of procedure they consider appropriate, although it should be noted that the committees can require a higher, but not a lower, level of procedure. There is no need for both Houses to agree on the necessary level of procedure; a resolution or recommendation from either House is sufficient to increase the level of procedure.
99.Parliamentary scrutiny of orders is currently undertaken by the House of Commons Regulatory Reform Committee and the House of Lords Delegated Powers and Regulatory Reform Committee.