The ‘super-affirmative’ procedure
31.14The super-affirmative procedure has been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate, for instance, for the scrutiny of certain items of delegated legislation made, or proposed to be made, under ‘Henry VIII’ powers. Sometimes it is the only procedure available and sometimes the responsible Minister is given a choice of order-making powers that includes the procedure, a choice that can be constrained at a preliminary stage by either House.1
The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. (It should be noted that the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.)
Under this procedure, a Minister's proposal for a statutory instrument is laid in the form of a draft of the instrument: the parent Act generally provides that an explanatory statement should accompany the proposal. A period of time (usually 60 days, not including days on which Parliament is dissolved or prorogued or on which both (or either) Houses are adjourned for a period of more than four days) is allowed for parliamentary consideration of the proposal. Following the expiry of that period, the Minister may lay a draft of the statutory instrument for approval by affirmative resolution of both Houses. In doing so the Minister is generally required to lay a statement summarising any representations made during the period for parliamentary consideration, and any changes which have been made to the instrument as a result of such representations.
Some enactments using the super-affirmative procedure also provide for an alternative ‘urgent’ procedure, where an order may be made and laid before Parliament (for example, the Human Rights Act 1998, see paras 31.39 –31.41 ). However, Orders in Council made under the urgency provisions in the Northern Ireland Act 1998, s 85(7) are not subject to super-affirmative procedures: they cease to have effect if they are not approved by both Houses within 40 days of being made.
There are also variations on the procedure, which allow each House, or even committees, to give enhanced scrutiny to affirmative orders without locking the Government into the full two-stage super-affirmative process.2
Standing orders in both Houses provide that proposals and draft orders subject to the super-affirmative procedure (or similar procedures) that are laid under particular enactments are referred to specific select committees for scrutiny. Legislative Reform Orders and Localism Orders are referred to the Regulatory Reform Committee in the House of Commons and the Delegated Powers and Regulatory Reform Committee in the House of Lords (see paras 38.68, 40.48 ). Proposals for draft orders, draft orders and orders made or laid under the Human Rights Act 1998, sch 2 are referred to the Joint Committee on Human Rights for scrutiny (see para 41.11 ).3
The Government has undertaken, where possible, to make provision for proposals for orders laid under the Northern Ireland Act 1998, s 85 to be considered by the Northern Ireland Grand Committee.4 There is at present no stipulated procedure for Commons consideration of proposals for secondary legislation laid under the super-affirmative procedure provided for in the Local Government Acts 1999, 2000 and 2003 or the Local Transport Act 2008. In the House of Lords, the Lords Procedure Committee has recommended that orders made under these provisions be scrutinised by the Delegated Powers and Regulatory Reform Committee.5
- 1. For an example of an enabling power with a required super-affirmative procedure, see Local Government Act 2000 (c 22), s 9. Enactments which contain a choice that includes super-affirmative procedure comprise the Fire and Rescue Services Act 2004 (c 21), s 5E, the Legislative and Regulatory Reform Act 2006 (c 51), s 18, the Localism Act 2011 (c 20), s 7 and the Public Bodies Act 2011 (c 24).
- 2. For example, under the Public Bodies Act 2011 (c 24), s 11, draft orders under the powers in ss 1–5 were required to lie before Parliament for 40 days before they could be approved. If either House resolved, or a Committee recommended an extension of this time within the first 30 days of that period, the period of scrutiny was increased to 60 days. At the end of that period, the draft order could be approved by both Houses in its initial form, but the Minister was also given the power to lay a revised draft order before Parliament, together with an explanation of the changes made.
- 3. In the House of Commons, draft orders under the Public Bodies Act 2011 were scrutinised by the relevant departmental select committee, unless the Liaison Committee designated another committee in its place (House of Commons SO No 152K). Similarly, the Liaison Committee has power to designate an existing committee or recommend the appointment of a National Policy Statement Committee (House of Commons SO No 152H) to scrutinise national planning policy statements laid under Part II of the Planning Act 2008 (c 29).
- 4. Fourth Special Report of the Northern Ireland Affairs Committee, HC 523 (2000–01); and see, for example, Stg Co Deb (2000–01), Northern Ireland Grand Committee, 22 March 2001. Section 85 of the Northern Ireland Act 1998 also provides that the Secretary of State must refer a proposal for an order to the Northern Ireland Assembly for consultation, and may request that the Assembly report on the proposal. The Assembly may report on the proposal, and must do so in response to a request from the Secretary of State: any report on the proposal adopted by the Assembly must be laid before Parliament.
- 5. House of Lords Procedure Committee, Third Report of Session 2012–13, HL 81, paras 10–15.