Select Committee on Delegated Powers and Deregulation Fifteenth Report


ANNEX 1

The march 1999 consultation document and the committee's response to it

In March 1999 the Cabinet Office issued a consultation document on its proposals to amend the Deregulation and Contracting Out Act 1994. The seven strands of the Government's proposals were as follows:

  • allowing a small increase in burdens on some parties if it removes a greater burden on others;
  • removing ambiguities in the law;
  • permitting restrictions to be removed from the regulators as well as the regulated to achieve more general "Better Government" objectives;
  • extending the power to regulations under the European Communities Act 1972;
  • permitting changes to restrictions imposed by common law;
  • extending the power to post 1994 legislation; and
  • permitting orders to be progressed if the committees issue reports before the end of the full 60 day initial scrutiny period.

Both the Parliamentary Deregulation Committees published reports on the proposals. Although the two Committees made different specific points, the House of Commons Deregulation Committee and this Committee broadly welcomed the consultation document. Our response was published in our fourteenth report of this session. In brief, our views were as follows:

ALLOWING AN INCREASE IN BURDENS

  • We regard it as essential that Ministers should specify in which areas of activity they see it as potentially desirable to be able to use this very wide power. Moreover, in our view any amending legislation should specify on the face of the bill what are the criteria - such as proportionality and that the proposal "did not adversely affect any right or freedom which those concerned might reasonably expect to be able to continue to enjoy" (Q 18) - by which Ministers will decide that they may impose additional burdens "in the interests of the greater good". Although we appreciate the reasons for Ministers wanting this additional power, without more information as to the activities potentially to be covered, and an assurance as to the inclusion of appropriate criteria, we would find it difficult to support this proposal (paragraph 23).

REMOVING AMBIGUITIES IN THE LAW

  • The Committee considers that the Law Commission, with its wealth of experience, is an important body to consult on uncertainties of this kind (paragraphs 24-25).

PERMITTING RESTRICTIONS TO BE REMOVED FROM THE REGULATORS AS WELL AS THE REGULATED

  • The Committee can see force in the case for the extension of this power to include local government and statutory organisations (paragraph 33).
  • We have, however, considerable reservations about the extension of the power to include central government, since it would mean that government could, by means of delegated legislation, propose the removal of statutory burdens on itself. We are also concerned that this power might be used, as the consultation paper itself points out, in conjunction with others "such as being able to impose a small additional burden in order to remove a burden from others". This aspect of the Government's proposals would merit particularly careful scrutiny in any draft bill (paragraph 34).

EXTENDING THE POWER TO REGULATIONS UNDER THE EUROPEAN COMMUNITIES ACT 1972

  • The Committee sees no need for this extended power, and does not support it (paragraph 36).

PERMITTING CHANGES TO RESTRICTIONS IMPOSED BY COMMON LAW

  • This part of the Government's proposals might be reasonable, provided that, on each occasion, the Law Commission was consulted. But we do not at present have sufficient information about, or justification for, what is proposed for us to form a definitive view at this stage (paragraph 38).

EXTENDING THE POWER TO POST 1994 LEGISLATION

  • We support to some extent this part of the Government's proposals, but do not accept a totally open-ended power. As currently drafted, this aspect of the proposal would increase the tendency for ill-considered legislation, as legislation could be introduced one session and deregulated the next. We also consider that there would be some risk of legislative instability in the event of a change of Government. We therefore suggest that the proposal should be revised to provide a three-year cut-off (paragraph 40).
  • As an alternative to taking this sweeping power we would much prefer the use of an annual redundant legislation bill as a vehicle to tidy up the statute book (paragraph 41).

PERMITTING ORDERS TO BE PROGRESSED IF THE COMMITTEES ISSUE REPORTS BEFORE THE END OF THE FULL 60 DAY INITIAL SCRUTINY PERIOD

  • Although the thinking behind this part of the Government's proposals has its attractions in theory, we cannot see how it could sensibly operate in practice, and therefore, reluctantly, we cannot support it (paragraph 44).
  • We do not consider that the second scrutiny stage (for which 15 sitting days are allowed in the Commons, and in practice the Lords Committee has always reported well within that timescale) causes "unnecessary delays in the process", and recommend that second stage scrutiny should be retained (paragraph 46).

THE COMMITTEE'S ADDITIONAL SUGGESTION FOR LAW COMMISSION PROPOSALS

The Committee also suggested that the Government's proposals should be modified to provide the possibility of a fast track procedure for parliamentary approval of the considerable back-log of non-controversial Law Commission proposals (paragraph 47).


 
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