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CONFERENCE REPORT ON INTERNATIONAL CONFERENCE ON REGULATION REFORM MANAGEMENT AND SCRUTINY OF LEGISLATION
SESSION 2001/2002 FIRST REPORT
Ordered by The Speaker to be printed 7 January 2001
Report to the Northern Ireland Assembly
THE LORD ALDERDICE, THE SPEAKER
Re-Engineering Regulations and Scrutiny of Legislation for the 21st Century Held at the New South Wales State Parliament, Sydney, Australia on 9-13th July 2001
*Note - Appendix papers are lodged separately in the Northern Ireland Assembly Library. A CD-ROM copy of the full proceedings of the Conference is included in the Appendix papers.
The aim of the Conference on Regulation Reform Management and Scrutiny of Legislation was to promote debate and cross-fertilisation of ideas across a wide range of parliamentary systems on issues of common interest with regard to the scrutiny of legislation and the development and reform of parliamentary regulatory controls.
The Conference gave Members attending a valuable opportunity to consider how the Assembly can learn from the experiences of other legislative bodies in handling secondary legislation. It was enlightening to hear about the problems encountered by other parliamentary bodies and the solutions that have been developed to provide for better public accountability and effective legislative scrutiny to ensure the best possible quality of law and regulation.
The summary of the main speakers and papers that is provided in the main body of the report gives a flavour of the wide range of experiences discussed.
One of the key lessons highlighted during the Conference was the danger of a 'democratic deficit' and the need for greater public accountability. Dr Philippa Tudor, speaking about the Westminster experience drew attention to a House of Commons Procedure Committee statement that:
there is.too great a readiness in Parliament to delegate wide legislative powers to ministers, and no lack of enthusiasm on their part to take such powers. The result is an excessive volume of delegated legislatio.
The danger of excessive delegation was also referred to by Lord Mayhew when he spoke on the use of 'skeleton' Bills which could be 'a licence to legislate by order', and Henry VIII powers to use subordinate legislation to amend or repeal primary legislation. He also referred to the danger of producing bad law whenever a Bill has to be passed 'at a gallop' without adequate scrutiny.
The importance of public involvement, consultation and petitions was raised by a number of delegates. Mr Firoz Cachalia spoke in the Open Forum session about the public participation office that the Gauteng Provincial Legislature had established to promote greater participation and civic responsibility. Committees had run workshops in communities on the content of policy and Bills and a public petitions committee had been established that was similar to the Scottish model.
Other delegates spoke on the principles of good regulation. Mr Gary Banks of the Australian Productivity Commission asked the question - what is good regulation? He explained that it must bring the greatest net benefits to the community. To achieve this goal good regulation must be the most effective way of addressing an identified problem; it must impose the minimum burden on those regulated; and it should cause the minimum amount of collateral damage to others. Professor John Braithwaite, Australian National University asked the question - was it better to have a tighter regulatory regime or base regulation on broader principles, backed by the minimum level of rules necessary? He argued that shorter, fewer and better understood principles rather than multiple detailed rules would engender greater consistency of application and legal certainty. Lord Mayhew referred to the need to strike a balance in the use of regulations - too many can make for suffocating law.
The Hon. Norman George of the Cook Islands made the point that smaller legislatures had the benefit of greater closeness to issues and to the public and could often take a more pragmatic approach to public debate. However, external legislative and economic pressures could impose undue constraints on their ability to act in the best interests of their citizens.
Professor Margaret Allars of the University of Sydney talked on the impact of the world economy and international organisations on domestic affairs and pointed to the vulnerability of democratic values through the diminution of the role of Parliament and the dangers to public accountability. Senator Barney Cooney, Senate of Australian National Parliament asked the question - why have scrutiny at all and what is it all about? He pointed to the need for morality and wisdom in scrutinising legislation.
The legislative principles and processes discussed at the Conference will be of interest to Members and Committees, especially with regard to how subordinate legislation is handled within the Assembly. Some of the pertinent issues that were raised were the:
The Conference agreed that, subject to advice from Dr Tudor as to the holding of the next Commonwealth Conference in South Africa in October 2003, The Provincial Parliament for Ontario, Canada would hold the next International Conference on Regulation Management and Scrutiny of Legislation in July 2002.
Scrutiny in the Northern Ireland Assembly
The legislative and regulatory powers of the Northern Ireland Assembly are laid down in the Northern Ireland Act 1998 and the Belfast Agreement. These empower the Assembly to make laws that are within the legislative competence of the Assembly. The UK Parliament retains the right to make laws for Northern Ireland on excepted or restricted matters such as international relations, defence and taxation and the maintenance of public order.
In making laws the Assembly's statutory committees have the power to approve secondary legislation/ statutory rules and take the committee stage of relevant primary legislation. They may also have a role in initiating public Bills. The Assembly may appoint a special committee to examine and report on whether a measure or proposal for legislation is in conformity with equality requirements, including the European Convention on Human Rights and Bill of Rights.
Although the Assembly has been in operation for some three and a half years it is only in the last two years since November 1999 that committees have already gained extensive experience and expertise in fulfilling their legislative scrutiny role. This Report seeks to widen awareness and knowledge within the Assembly of the international experiences of regulatory scrutiny that were considered at the Conference.
In the two years since the Assembly began in November 1999 a total of 29 Executive Bills and 410 statutory rules (eight affirmative, 21 confirmatory and 381 negative resolution) have come before committees for consideration. One Private Member's Bill has been introduced so far. Committees are only now beginning to build up a body of knowledge and skills in the scrutiny of legislation. Unlike Scotland, Westminster or Australia, the Assembly does not at present have a separate legislative scrutiny committee. Scrutiny of the competency of subordinate legislation is undertaken by committees, assisted by the Examiner of Statutory Rules under Standing Order 41 (5) who reports his findings to the Assembly. The adoption of the standing order by statutory committees allows committees to concentrate on a key area of concern to committees, namely the principles and intent of proposed legislation.
One example of the growing ability of the Assembly to confront the Executive when it is concerned about the intent and impact of proposed legislation was the consideration of the Building Regulations (NI) 2000 by the Committee for Finance and Personnel. The Committee had been presented with a regulation without adequate opportunity to consider it at the pre-legislative stage. This was due in part to the transition from direct rule to devolved government and to a lack of appreciation by officials of the role of the committee and the need to involve it at an early stage. The Committee raised concerns about variations in protection against radon gas protection for domestic dwellings across a number of areas as well as the protection of non-domestic premises such as schools. The Committee was sufficiently concerned that it moved to annul the regulation and the action taken by the Committee highlighted the seriousness of its concerns. A compromise was reached whereby the motion was withdrawn on the understanding that action would be taken by the Department of Finance and Personnel to address the Committee's concerns about radon protection.
Mr Patrick Oakey OBE, the then Examiner of Statutory Rules made a number of pertinent observations on the handling of statutory rules in his report (NIA 22/01) to the Assembly for the period 3 April 1999 to 1 December 1999 and from 12 February 2000 until 29 May 2000. His observations on the handling of subordinate legislation were similar to some of the concerns raised by Conference delegates and may be of interest to committees. Relevant observations were:
Committees and Members also will find of interest the forthcoming report on the review by the Committee on Procedures into how the Assembly processes legislation. This is likely to address a few of the issues raised during the Conference such as the importance of pre-legislative scrutiny.
The aim of the Conference on Regulation Reform Management and Scrutiny of Legislation was to promote debate and cross-fertilisation of ideas across a wide range of parliamentary systems on issues of common interest with regard to the scrutiny of legislation and the development and reform of parliamentary regulatory controls. The Conference was the first international conference of its kind, although similar conferences have been held at Australian and Commonwealth levels for several years.
The New South Wales State Parliament and its Committee for Regulation Review under the then chairmanship of Mr Peter Nagle MP initiated and hosted the conference. The Regulation Review Committee was established under the NSW's Regulation Review Act 1987. It is a Joint Committee of the NSW Legislative Council and the Legislative Assembly that is tasked with examining all regulations. It does so in accordance with various grounds, including whether they trespass on private rights and liberties; adversely impact on business; are not in accordance with the spirit of the Regulation or within its objectives or there are better alternatives. The Committee reports to the NSW Parliament on those grounds and whether there has been compliance with procedures relating to the making of regulations under their Subordinate Legislation Act 1989. The Committee has the power to recommend to the NSW Parliament that regulations be disallowed.
A copy of papers presented to the Conference by the speakers and a record of the Conference have been lodged with the Assembly Library. Representatives of a wide range of Parliaments and Assemblies attended the conference. Parliamentary delegates attending from the UK were:
The Conference sessions and speakers were as follows.
Day 1 - 9 July 2001
Keynote address: Hon. Chief Justice Murray Gleeson AC, Chief Justice of the High Court of Australia
Keynote Speaker: Hon. J Spigelman, Chief Justice of the Supreme Court of New South Wales, Australia
When Enough is Enough - The limits of regulation-making powers: Lord Mayhew of Twysden, House of Lords, UK
Day 2 - 10 July
Challenges for Australia and the Commonwealth in regulatory reform: Mr Gary Banks, Productivity Commission, Australia
Regulatory Horror Stories - Australian and international: Mr Peter Nagel MP, New South Wales Parliament
The role of Parliament in ensuring the quality of law and regulation: Ms Sue Holmes, PUMA, OECD
(1)Why re-invent the wheel when the Australian model works?: Dr Philippa Tudor, Clerk Delegated Powers and Regulatory Reform Committee, House of Lords, UK
(2)Future of regulation and scrutiny of legislation in Italy: an in-depth perspective: Mr Luigi Carbone, Simplification Unit, Prime Minister's Office, Italy
Day 3 - 11 July
UK Regulatory Reform Bill: impact on deregulation process: Mr Peter Pike MP, House of Commons, UK
The devil in the detail - A New Zealand perspective of the scrutiny of delegated legislation: Mr Richard Worth MP, New Zealand
National competition regulation policy: Mr Graham Samuel, National Competition Council, Australia
A review of United States regulatory policy: Mr Russel Turner, Office of Management and Budget, USA
Scrutiny of legislation - A Scottish perspective: Mr David Mundall MSP, The Scottish Parliament UK
(1)Regulatory impact assessment - when, how and why: Mr Paul Bek and Ms Jennifer Bryant, Office of Regulation Review, Productivity Commission, Australia
(2)The role of Parliament in ensuring the quality of law and regulation - an in-depth perspective: Ms Sue Holmes, PUMA, OECD
Day 4 - 12 July
Valuing the community's knowledge - IT, the web and the scrutiny process: Hon. Norman George, Deputy Prime Minister, Cook Islands
Rules, principles and legal certainty in regulation: Professor John Braithwaite, Faculty of Law, Australian National University, Australia
Open forum on regulation, reform and scrutiny: delegates
Day 5- 13 July
Scrutiny of legislation as an aspect of constitutional supremacy - the Indian experience: Mr Chandra Gowda, Minister for Law and Parliamentary Affairs, Government of the State of Karnataka, India
Regulatory reform - a Welsh perspective: Mr Mick Bates AM, National Assembly of Wales
Citizen participation in legislative rule making - the impact of federalism and internationalisation: Professor Margaret Allars, Faculty of Law, University of Sydney, Australia
The spirit of scrutiny - wisdom is the way: Senator Barney Cooney, Senate of Australian National Parliament, Australia
Debate on motions for Conference resolutions
Keynote Addresses - the legal perspective
The Hon. Murray Gleeson AC, Chief Justice of the High Court of Australia gave the Keynote Address and spoke on regulation from a judge's perspective. Areas of interest addressed included the overlap between the activities of courts and parliaments, the development of techniques to address the complexities of modern legislation, understanding the intended and unintended consequences such as crackdowns on anti-social behaviour, and the role of the courts in modifying and developing common law.
This was followed by a speech by the Hon. James Spigelman, Chief Justice of the Supreme Court of New South Wales. He spoke on the role and judgements of the courts, which are part of the public discourse that allows society to affirm and adapt its values. This was part of a governmental function similar to one of the functions performed by legislatures. He went on to consider the effectiveness of performance measures in relation to government regulatory activities and the courts and efforts to develop results-driven models of effectiveness, especially in relation to qualitative judgements.
When enough is enough: the limits of regulation-making powers
Lord Mayhew of Twysden, member of the Delegated Powers and Deregulation Committee, House of Lords, UK spoke on the general principles that should be considered when examining regulation-making powers. He began by asking the question of when do parliaments know 'when enough is really enough'. Primary legislation will often delegate parliamentary responsibility through powers given to departments to make regulations. This may be necessary to avoid the system from clogging up and to ensure effective government. Parliament needed to focus on the extent to which delegation should take place. He referred to the last Commonwealth Conference on delegated legislation when the point was made about governmental paralysis occurring if the parameters for delegation are set too tightly and the dangers of constitutional abdication of the parameters are too loose.
He pointed to the action taken by many parliaments to introduce regulatory reform legislation and committees in the last 10-15 years. The House of Lords had taken the Australian model as its reference point when setting up its Delegated Powers and Regulatory Reform Committee. Lord Mayhew pointed to the importance of addressing this subject by stating that:
If you create a hydra-headed monster then that is what you get.and.legislate in haste, repent at leisure.
An example was the Dangerous Dogs Act when insufficient time was given to the scrutiny of its impact. He went on to outline the dangers of trying to regulate the 'unregulateable' by referring to the rapidly developing field of electronic communications. Parliaments must also increasingly take into account the impact of international law on domestic legislation.
He then spoke on the need, when establishing the powers to regulate in primary legislation, to describe very clearly the powers to be delegated, their purpose and the degree of parliamentary control. There was a danger of 'skeleton Bills' such as the UK Pollution Prevention and Control Bill that was introduced in the 1998/99 session being used inappropriately. These were effectively 'a licence to legislate by order' and needed to be scrutinised very carefully.
Lord Mayhew used the Dangerous Dogs Act as an example of the need for tougher scrutiny of Bills that are rushed through a parliament because of lack of time. He suggested that scrutiny could be improved by making powers normally subject to negative resolution subject to affirmative resolution if a Bill has to be passed 'at a gallop'.
He went on to describe the use of 'Henry VIII' clauses or powers. These are clauses that give the Executive wide powers to use subordinate legislation to amend or repeal primary legislation. The House of Lords Delegated Powers and Regulatory Reform Committee scrutinised the Building Societies Bill and agreed that suitable parliamentary control was present and that the 11 Henry VIII clauses were appropriate. The Committee took a contrary position on the Education Bill and recommended that it should be amended to make the Henry VIII clauses in it unnecessary.
The theme of Henry VIII powers was also addressed when he spoke on the need for tougher parliamentary scrutiny for constitutional Bills and compared the different approach taken on Henry VIII powers in the Scotland Bill and in the Government of Wales Bill.
The point was made that due to the increasing complexity of modern legislation there might be a need for a 'super affirmative' procedure that would provide for additional committee scrutiny. It would make public consultation at both pre-legislative and parliamentary stages compulsory for deregulation and reform orders. He referred to a Henry VIII power in the Human Rights Act that was of fundamental significance. The Committee had proposed a new procedure for scrutinising such orders in view of the open-ended nature of that power.
Lord Mayhew went on to warn against the dangers of sloppy drafting of secondary legislation. He finished by considering the question of when enough is enough. He offered an overarching definition for judging the limits of regulation-making powers and suggested that:
.the aim of legislation should be that, in the absence of cogent reason to the contrary, all matters of important substance should be contained within the primary legislation.
Challenges to Australia and the Commonwealth in regulatory reform.
Mr Gary Banks, Chairman of the Australian Productivity Commission spoke on the challenges of regulatory reform. He asked the question - what is good regulation? It must bring the greatest net benefits to the community. To achieve this goal, good regulation must:
In meeting these criteria good regulation should not be unduly prescriptive. Where possible it should specify performance outcomes. It should be flexible enough to accommodate changing circumstances and it should provide for cost-effective compliance. Regulations should be consistent with other laws and obligations, clear, concise and easily understood. They should also be enforced reasonably and monitored and evaluated.
Mr Banks spoke about the commercial and environmental impact of poor regulations and the cost-recovery practices. He then asked the question as to why regulatory efforts often fail. The short answer was that bad regulation is easier to implement than good regulation. Laws have been put into effect without proper answers to the questions:
Part of the solution was to develop a best practice policy that required departments and agencies to prepare regulation impact statements for all regulations that would affect business. These must justify the need for government intervention. Departments were also obliged to consult with the Office of Regulation Review from the outset, which would verify that regulations were of a suitable standard. Compliance monitoring highlighted deficiencies. Mr Banks went on to look at some of lessons to be learnt from failures to comply with best practices.
Ontario Red Tape Commission, Canada
Mr Steve Gilchrist, Co-chair of the Ontario Red Tape Commission spoke on the experiences of his Commission in changing the way in which government works with people and business. The emphasis was on simplifying regulations and procedures so that government could be more responsive to its citizens and to business, especially small and medium-sized businesses. The Commission was required to introduce at least one red tape reduction Bill that repealed or amended regulations during each sitting of the provincial Parliament.
Mr Gilchrist went on to examine the need to move away from a concentration on administrative housekeeping to looking at how reductions in legislation could improve the effectiveness of economic activity. As part of this process the Commission developed a business impact test to assist the Commission in focusing on those regulations that would have a negative impact on economic competitiveness.
Regulatory horror stories - Australian and international
Mr Peter Nagle MP, the then Chairman of the Regulation Review Committee, NSW Parliament and Chairman of the Conference, spoke on his experiences of legislation and the absurdities of the bureaucratic consequences of regulations. One lesson learnt was the need to ensure that Parliament maintains control over legislation by means such as regulation review committees and that the consequences of regulations are consistent with parliamentary aims and intentions. He went on to point to the responsibilities of the various tiers of government and the consequential impact of regulations.
The role of Parliament in ensuring the quality of law and regulation
Ms Sue Holmes, Administrator for the Regulatory Management and Reform Public Service, Organisation for Economic Co-operation and Development (OECD) spoke on the quality of law and regulation. Her organisation studies how governments organise and manage their public services.
She outlined the history of international standards for defining regulatory quality and looked at how different governments can obtain best value from regulation management. This was not just about deregulation but was about smarter regulations that were well chosen and well suited to their objectives.
She also described the basic questions asked in the OECD checklist for law and regulation making. These were:
Ms Holmes concluded by describing the adoption of regulation analysis as part of the law making process This seeks to assess the need for regulatory action and its likely effectiveness by asking a structured list of questions to assess issues such as costs, benefits, gender and human rights. Further details were given in the paper she presented to the Conference.
Workshop One: Why invent the wheel when the Australian scrutiny model works?
Dr Phillipa Tudor, Clerk to the Delegated Powers and Regulatory Reform Committee, House of Lords spoke on the experience of the House of Lords in using the Australian model for regulatory scrutiny. Effective consultation was at the heart of the regulatory reform process with citizens able to respond to the Government, Parliament or both. The key to the 99% acceptance rate for the Committee's 30-40 reports each session was timely reports that were short and punchy with clear recommendations, a constructive approach, the use of non-threatening language, and that members with a high reputation acted in a non-political manner. The use of the Internet was advocated and most evidence was received by e-mail.
Workshop Two: Future of Regulation and scrutiny of legislation in Italy
Mr Luigi Carbone, Deputy Director Simplification Unit, Prime Minister's Office, Italy spoke on the experience of Italy since the 1990s in addressing a history of state intervention that had made Italy one of the most over-regulated countries in the OECD. A broad regulatory quality strategy was developed with watchdogs at the centre of government. Transparency, accountability and competition policy have been emphasised and regulatory impact analysis has been adopted. Allied to this process has been the move to a market-based, consumer-orientated and decentralised state.
United Kingdom Regulatory Reform Bill: impact on deregulation process
Mr Peter Pike MP, House of Commons UK spoke on the need to define what is meant by regulation, as well as the impact of politicians on domestic and EU regulation. He looked at the slow progress made in the UK on regulatory reform and the action taken to improve the scrutiny of regulations. The history of scrutiny at Westminster had seen the separation of the technical scrutiny from consideration of the merits of a statutory instrument (1920s) and the creation of a Joint Committee on Statutory Instruments, which would consider every Bill laid before Parliament against specific criteria (1973). This Committee has no powers and cannot take evidence from Ministers. Its reports are consequentially of no consequence although Government may "correct the error at the next suitable opportunity".
He concluded with a description of the 1994 Deregulation Act that gave some additional powers to the Committee. It was amended by the Labour Government to remove some of the legislative restraints in the original Act. This allowed another regulatory burden to be introduced as long as the legislative effect was to reduce of the overall burden.
The Devil in the detail - a New Zealand perspective of the scrutiny of delegated legislation
Mr Richard Worth MP and member of the Regulations Review Committee of the New Zealand Parliament spoke on the New Zealand experience of developing regulatory scrutiny. The Committee's role was to examine and report on draft regulations and any regulation-making powers in a Bill before another committee. The Committee operated under the principles that any regulation-making powers in a Bill should represent good legislative practice, the merits of government policy behind a Bill would not be assessed, and its scrutiny powers were laid down under standing orders.
He pointed to a possibly unique part of the Committee's role. This was consideration of complaints made by the public or an organisation aggrieved at the operation of a regulation. The Committee must decide whether the complaint relates to its terms of reference and can be drawn to the special attention of the House, for example infringement on the rights and liberties of citizens.
Bills would go before 13 select committees, which could recommend amendments and report to the House within a normal time frame of six months. The advantages of the select committee system were given as public participation, better-informed members and the opportunity for the Opposition to question the Government in greater detail. Some disadvantages included additional costs and time, 'skeleton' Bills in an unfinished state and Bills that emerge from committee in a greatly changed state.
Areas covered by the Committee in examining delegated legislation included:
Mr Worth went on to consider Bills handled by the Committee that illustrated these issues. One example was the Misuse of Drugs Amendment Bill and the difficulties of legislating for a rapidly changing illegal drugs scene, including their identification and classification. The Committee had a real concern that matters of policy and substance were being shifted from primary legislation to regulations. The relevant select committee accepted their recommendations.
Another case was the Public Health and Disability Bill and the restructuring of health services. Fundamental provisions for the establishment of boards and committees and appointment of members should have been in the Bill but were to be provided for in regulations. The Committee objected and recommended arrangements that would ensure the regulations did not override primary legislation. The Committee was also undertaking an inquiry into whether there were significant instruments or 'tertiary legislation' that might escape parliamentary scrutiny.
National competition regulation policy
Mr Graham Samuel, President of the National Competition Council of Australia spoke on the impact of deregulation and improvements to the competitiveness of the Australian economy. All Federal, State and Territorial governments had agreed on a competition policy that committed them to the principle that competition serves the interests of the whole community and should be promoted throughout the economy. It was not competition for competition's sake by as a means to an end i.e. benchmarking action against benefit to the community, which were not based solely on economic concepts. This required that those anti-competition measures, regulations and structures should be removed unless it could be demonstrated that the public interest outweighs the anti-competitiveness cost of the regulations. Justification was placed on those seeking to retain a restrictive regulation.
The OECD has promoted a broad-scale integrated approach to regulatory reform rather than a piece-meal approach and competition policy is regulatory reform at its broadest.
Mr Samuel went on outline the history of the policy implementation and the key elements for success. Successful economic reform especially requires extensive consultation, communication and education. The agreement provided that the merits of applying three particular reforms should be pre-determined on a case-by-case basis using a public interest assessment. The three reforms were:
A carrot dangled before State and Territorial governments by the Federal government was a substantial financial incentive of reform dividends that were benchmarked against progress on competition policy reforms. An ongoing process of benchmarking and reassessment should be a regular part of this policy.
He concluded with the message that globalisation and its impacts on individual countries means that there is now little alternative to modernising competition policies and reforms of regulatory restrictions.
Video - a review of United States regulatory policy
Mr Russell Turner, Office of Management and Budget, Washington DC USA was unable to attend. He therefore made a video presentation. The OMB assists the President on the development and execution of policies.
Scrutiny of legislation - a Scottish perspective
Mr David Mundell MSP and member of the Scottish Parliament's Subordinate Legislation Committee spoke on the Scottish experience of legislative devolution and their developing experience of the scrutiny process. The Scottish Parliament was established in 1997 under the Scotland Act 1998. Four basic principles that govern the Parliament's work were established - openness, sharing power, accountability and equal opportunities. The Parliament can make primary legislation and has the power to vary the rate of income tax by three pence in the pound. Anything not explicitly reserved by Westminster was devolved to the Parliament.
The Subordinate Legislation Committee is one of eight mandatory committees with a further nine subject committees that shadow the Scottish Executive's departments. These committees are similar to the Assembly's statutory committees and combine the roles of scrutiny, inquiry and legislative responsibility. Committees have the power to initiate legislation and a number of committee Bills are now before Parliament. Of interest to the process of increasing the level of openness and accountability was the establishment of a Public Petitions Committee. This was set up to receive, consider and forward petitions from the public to the relevant committee.
The value of the pre-legislative scrutiny stage was discussed, especially with regard to statutory instruments. This stage established the policy intent, its intended effect and impact on existing legislation. Mr Mundall went on to consider the case of instruments subject to annulment and the role of Parliament in securing proper scrutiny. His committee is required to consider the technical form and vires of any instrument subject to annulment or approval. The Committee must then report to the lead committee on its findings within 20 days. It is open to any member of the Parliament to lodge a motion that the lead committee recommends annulment or approval of an instrument. The motion will then be debated in committee with the minister in charge of the instrument entitled to attend. The lead committee then makes its recommendations for consideration by the House.
The problems associated with the 'take it or leave it' approach to approving or objecting to subordinate legislation has been an issue with members who have perceived a 'democratic deficit' in this approach. The Subordinate Legislation Committee was addressing this issue as part of its consideration of a replacement for the transitional Westminster order that provided for procedures for handling statutory instruments between the Parliament and the Executive. Also discussed was the Committee's recommendation that a "super-affirmative" procedure be used for matters of public importance such as the framework Bill to establish a national park. Allied to this was providing for additional compulsory public consultation. Mr Mundall echoed Lord Mayhew's concern about the use of 'skeleton' Bills that provide the Executive with great flexibility in their application while restricting the power of scrutiny of Parliament.
As part of the process of developing its understanding of the role and impact of subordinate legislation the Committee had also invited senior officials to informal meetings to discuss matters of mutual interest such as consolidation of legislation.
Valuing the community's knowledge - IT, the web and the scrutiny process
Hon. Norman George, Deputy Prime Minister of the Cook Islands spoke on the different approach to consideration of regulations that had been taken by the Cook Islands legislature. The Cook Islands' Parliament, due to the small size of its population, has a limited need to enact legislation and has taken a relaxed attitude to the need for regulation. Subordinate legislation was usually by way of by-laws that were prepared by local island governments or councils. These are then passed to the Executive Council for approval. This allowed for scrutiny of local actions on isolated islands that are spread over a large expanse of ocean.
The point was made that the Parliament took a very pragmatic approach to legislation and scrutiny. It met when there was a need to legislate. Transparency and closeness to the issues meant that discussion on proposed legislation was often very effectively thrashed out through the local media in advance of any parliamentary debate! The message that he put across was that elaborate legislative structures should only be considered where there was a clear need.
He went on to give an example of the pressures placed on countries or territories such as the Cook Islands from international bodies, donor countries and outside aid organisations in areas such as treaty obligations. Treaties could have a positive or negative impact on policies as well as regulatory rights. He gave the example of intellectual property and copyright and the difficulties of determining the parts of the Treaty of Paris that were relevant to the Cook Islands.
Rules, principles and legal certainty in regulation
Professor John Braithwaite, Faculty of Law, Australian National University talked on how rules work, their consistency in application and the extent to which people can rely on regulations. He began with a distinction between rules and principles and illustrated it with reference to the book on financial services regulation in the UK Rules and Regulators by Julia Black and published in 1997. There was a call by the industry for clarity and certainty in the law with a move to highly specific regulatory regime of precisely defined rules. This created problems such as increasingly complex laws, creative compliance to avoid unwanted outcomes, legalism and the difficulties of dealing with issues that may be rapidly changing such as transitional technologies.
He then pointed to the benefits of the Australian approach and the reliance on broad principles in its regulatory model. This had led to more effective regulation compared with the rule based American model that was used for regulation of nursing homes. He considered the benefits of a mix of rules and principles and asked the question:
Is it better that rules are binding and backed by non-binding justification principles that help you to interpret the rule; or is it better to have non-binding rules that can be overridden by binding principles?
He argued that the latter option gave more effective regulation in the long term - shorter, fewer and therefore better discussed principles, rather than multiple detailed regulations, will engender greater consistency of application and legal certainty.
Open forum discussion
The open forum debate ranged over a number of issues. Mr Firoz Cachalia Speaker to the Provincial Legislature in Gauteng, South Africa spoke on their parliamentary system, which was set up in 1994 and is a form of co-operative governance with a mix of unitary and federal features.
One feature of interest was their approach to more effective consultation and public participation. They set up a public participation office with a budget and an education program to overcome obstacles to greater participation and civic responsibility. They also introduced ways to achieve public participation in the committee process. After the introduction of legislation the relevant committee may then run workshops in communities on the content of the policy and Bill. This made for a more meaningful committee stage. A system of petitions, borrowing from the German system and similar to the Scottish model, was introduced with a petitions committee. This has created a cost-effective form of administrative justice and public influence. Any Minister who refuses to respond to a petition is subject to a political penalty.
Members of the NSW Parliament's Regulation Review Committee spoke on its work with reference to undue trespass on personal rights and liberties, effective consultation with interest groups, and achieving commitment to better regulatory quality at departmental level.
The Hon. Malcolm Jones spoke on the Australian Senate Scrutiny of Bills Committee, which examines legislation under the principles of whether it:
The Committee issues an alert digest, which warns of any Bills that impinge on these principles. Other participants outlined their own experiences of regulatory review.
Scrutiny of legislation as an aspect of constitutional supremacy - the Indian experience: Mr Chandra Gowda, Minister for Law and Parliamentary Affairs in the State Government of Karnataka, India, spoke about the scrutiny of legislation and the issue of constitutional supremacy, as set against the backdrop of Indian political history. He explained that the supremacy of Parliament and the procedure for amending constitutional law has been at the centre of legal controversy in India.
Mr Gawda pointed to the influence that the Westminster Parliament and the development of government in the United States of America have had on Indian parliamentary life. He compared the concept of parliamentary supremacy with the role of the United States Supreme Court and its powers of judicial review of legislation. He went on to talk about the development of the Indian constitution and parliamentary system of governance within a federal State. Unlike the UK or USA the allocation of responsibilities between the elected Parliament and the judiciary, which is the custodian of civil liberties, appeared to have remained indeterminate in India. A case history was given of the tensions between the judiciary and Parliament with respect to the judiciary's duty to uphold the Constitution and its authority to rule on the constitutional boundaries of legislation, and the restraints placed on the power of Parliament.
Mr David Simeon, concluded by commenting on the fiscal accountability of the Executive to the Indian Legislature. A new committee system was introduced in the Karnataka Legislature in 1994 in order to remedy the lack of detailed scrutiny of budgetary proposals that had previously existed. The Committees were charged with financial, policy, and legislative scrutiny duties but the committee system was abolished in 1998 due to the inability of committees to fulfil their function effectively in the face of administrative pressures and a lack of understanding of their role. Committees were reconstituted in 2001.
Regulatory reform - a Welsh perspective
Mr Mick Bates AM, National Assembly of Wales spoke on the history of Welsh devolution and the limitations to the Assembly's legislative powers. It is essentially an elected corporate body that exercises powers that were formerly exercised by the Secretary of State for Wales and cannot make primary legislation. Protocols, concordats, codes of practice and partnerships have been established with UK government departments. He explained the devolution settlement for Wales did not lend itself to clarity on how devolution would work. This has led to public confusion as to the remit of the Assembly that continues to undermine its credibility.
Citizen participation in legislative rule making - the impact of federalism and internationalisation
Professor Margaret Allars, Faculty of Law, University of Sydney, Australia presented a paper that recognised the impact of the world economy on domestic affairs and the need for co-operation between federal and state governments and parliaments in the harmonisation of laws. Professor Allars traced the history of the delegated law-making procedures in Australia with a particular interest in addressing red tape and outdated regulations. She spoke of the dangers to the process of consultation and referred to the impact of the New South Wales Act on regulatory impact assessment (RIA) and a trend towards giving maximum importance to RIA with little regard for public consultation. Consultation was viewed as only of value as an aid to the provision of information that would assist in the RIA.
Professor Allars went on to address issues surrounding the securing of accountability through the courts and Parliament of legislation that had a federal and state dimension such as the national electricity law. She pointed to problems emerging with national scheme legislation in terms of circumventing accountability to Parliament and a practical concern that scrutiny by provincial legislatures may slow down the legislative process for implementing intergovernmental agreements.
She concluded by pointing to the vulnerability of democratic values through the diminution of the role of Parliament, which is by-passed by decisions made by ministerial councils that have no responsibility to any particular Parliament and are not accountable to the courts. And the need to restore the role of citizens as participants in the scrutiny process.
The spirit of scrutiny: wisdom is the way
Senator Barney Cooney, Chairman of Senate Scrutiny of Bills Committee, Senate of Australian National Parliament asked the question - why have scrutiny at all and what is it all about? He spoke on the terms of reference under which his Committee tested legislation and the moral imperative that should guide the scrutiny of legislation. He pointed to the need for wisdom (or some sort of sensitivity or conscience) when considering the rationale for poor law making and in scrutinising legislation. He illustrated his argument with references to immigration, voting and administrative review of decisions on criminal proceedings.
Debate on motions for Conference resolutions
Subject to advice from Dr Tudor, as to the holding of the next Commonwealth Conference in South Africa in October 2003, that the Provincial Parliament of Ontario, Canada will hold the next International Conference on Regulation Management and Scrutiny of Legislation in July 2002.
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