House of Lords - Explanatory Note
Regulatory Reform Bill [H.L.] - continued          House of Lords

back to previous text

"..make provision for the purpose of reforming legislation which has the effect of imposing burdens affecting persons in the carrying on of any activity".

35. This echo from section 1 of the DCOA has the effect of concentrating the power on ongoing activities. In its 15th report last session, the Delegated Powers and Deregulation Committee reported that "Most legislation could be regarded as having such an effect. A considerable proportion of all bills are concerned with the amendment of earlier legislation which imposes burdens on individuals or corporations or which authorises or enables categories of person to act in a particular way." It is the Government's policy intention to direct the order-making power to the benefit of business, charities, the voluntary sector, individuals and legal persons and the wider public sector, and consequently proposes a wide gateway. In order to ensure that the gateway is no wider than necessary to achieve reform to regulatory regimes, the gateway is limited by the requirement that the reform must be "with a view to" the objects set out in clause 1(1)(a) to (d) (see paragraph 40 et seq).

36. There is a key policy test not on the face of the Bill that further restricts the use of the order-making procedure - that of appropriateness. The Delegated Powers and Deregulation Committee, again their 15th report of last session, commented "Lord Falconer readily acknowledged that there is no precise line drawn in the draft bill between matters in respect of which it is appropriate to legislate by way of order and other matters in respect of which it would not be appropriate, nor is it the Government's intention to try to draw one. It will, he said, be for Ministers to decide whether or not the use of the new power would be 'appropriate' (Q.13), likening the task of so deciding to the difficulty of defining an elephant. 'You cannot describe it but you know it when you see it' (Q. 13). When asked whether he would 'be content to rely totally on a successor administration's definition or interpretation of what was appropriate and what an elephant was' Lord Falconer replied 'Yes, I would' (Q. 16). He also relied on the safeguard that both Committees would be expected to comment if they considered a proposal inappropriate..".

37. The Government believes that the super-affirmative order-making process, with its thorough consultation and weighing of evidence, is well suited to the objective consideration of complex issues, where the judgement of experts is required, and for issues on which a group of reasonable people, given the relevant facts, would be likely to reach consensus. It may not always be clear at the start of the process that an issue falls into this category. If it were to become clear during the process that it is not suited, then the proposal could be withdrawn as a draft order and returned to the floor of the House in the form of a Bill. It should be noted that:

  • as is currently the case with the arrangements for deregulation orders, the Parliament Acts would not be available to the Government during the scrutiny and Parliamentary approvals process of draft orders (see paragraphs 6 to 10 above, paragraphs 66 to 85 below and Annexes E and F);

  • the Committees enjoy an effective veto over individual proposals (see paragraphs 8 and 10 above); and

  • the two Houses are treated as co-equals in the scrutiny process as there is no Commons over-ride.

38. Consequently, while the Government considers large-scale measures such as reform of fire safety legislation as appropriate for the order-making procedure, politically controversial measures would continue to be reserved for debate on the floor of the House. Clearly it is not possible to draw up in advance a list of politically controversial items. It has to be a case-by-case judgement. For example, the Government contends that the following propositions would be ruled out as inappropriate:

  • any proposal aimed at constitutional change, such as amending the law on devolution or representation of the people;

  • any proposal primarily aimed at making changes to the judicial system, such as those addressed in the last session by the Criminal Justice (Mode of Trial) Bills (although lesser changes, such as the setting up of an appeals mechanism, might be made in the context of wider reform of a specific area of law);

  • any proposed changes to the structure or organisation of local government, such as setting up directly-elected mayors (although change might be made in relation to activities such as waste collection or administration of schools);

  • any proposed changes to the Ombudsmen procedures, which deal with complaints of maladministration against public bodies.

39. Change in these sorts of areas would be for Parliament to consider as primary legislation. Only proposals which seek to deal with ongoing activities would fall within the vires of the regulatory reform order-making power, for example:

  • reform of the legislation governing gambling.

  • removal of the restriction that school crossing patrols can only assist children of school age across the road on their way to school (and not, for example, younger siblings of schoolchildren), as proposed in section 270 of the Transport Act 2000.

"..make provision for the purpose of reforming legislation which has the effect of imposing burdens affecting persons in the carrying on of any activity, with a view to one or more of the following objects"

40. From the starting point of burdensome legislation, an order may involve any combination of the four objects in subsection (1) paragraphs (a) to (d). These act as a limitation on use of the order-making power, since it can only be exercised with a view to securing one or more of the objects. It is highly likely that every order will take in object (a), since to make an order predicated on reform of burdensome legislation without then seeking to remove or reduce any of those burdens would be very unusual. However, there may be circumstances where the order would not obviously remove or reduce a burden. For example, some institutions share responsibility for the up-keep of their premises with local or central government but it is not always clear where the responsibility for the repair of a particular item lies. Determining on which side of the line a particular item falls and consequently who is responsible for it can give rise to complex and bureaucratic arrangements. An order could reform the arrangements by transferring the entire burden to the institutions themselves, provided that their grant to cover such works was increased. This would result in a much simpler system, without need to maintain difficult and costly bureaucratic distinctions.

41. Paragraphs (b) and (c) are concerned with the imposition of burdens. The DCOA only allows burdens to be imposed where they are less onerous than the burden being removed, and only on those affected by the burden being removed. Paragraph (b) allows burdens to be carried over from the legislation under reform, as in the DCOA, but only where they are pass the test of proportionality. Paragraph (c) goes a step further, in allowing an order to increase burdens on those already affected and to impose new burdens on people not previously subject to burdens at all, but again only where they too are proportionate. As with the tests in clause 3, the Minister will have to justify his decision about how the order meets it in the document he lays before Parliament under clause 6. While the proportionality test differs from the other three tests because it is not expressed to be dependent on the Minister's opinion, it is covered by the requirement for the power to be exercised "with a view to" securing one or more of the objects in clause 1(1). As with the concept of necessary protection against which the 46 deregulation orders made to date have been tested, it also has an objective legal meaning (although, in making a particular order, the application of the concept may be a matter for discussion). It will be of increasing relevance in other contexts given the application of the Human Rights Act 1998, and is now a concept with which the UK legal system is familiar. The decision about what is proportionate may be somewhat subjective, and will always depend on the individual circumstances of the case. For example, in rationalising a licensing system it might not be considered proportionate to require people who did not previously have to have a licence to obtain one. It might be considered more proportionate (and therefore more appropriate) to set up a new system of negative licensing, class (rather than individual) licensing, or perhaps a registration system instead. Whatever the Minister decides to promote in the proposed order, he will have to explain why.

42. Paragraph (d) provides for orders to remove inconsistencies and anomalies in legislation. This object will be particularly relevant when a Minister is using an order to reform a whole regulatory regime, because problems with burdensome regulatory regimes are often due to overlap between different pieces of legislation. This object is also likely to be relevant in the context of proposals from the Law Commission on reform of the law. The Law Commission's programme of work results in the production of Bills ready for introduction to Parliament. However, due to the pressure on the legislative programme, these proposals might not reach enactment for several years. The provision at paragraph (d) will assist in enabling Law Commission proposals which fit the other criteria for orders under the Bill to be implemented by order.

43. Subsection (2)(a) provides that an order may have as its subject any Act of Parliament which is more than two years old. This is a change from section 1(5)(c) of the DCOA, which limits application of the power to legislation passed before the end of the 1993-4 Parliamentary Session. The term "Act" is defined in Schedule 1 to the Interpretation Act 1978 (as amended by Schedule 8 to the Scotland Act 1998) as meaning an Act of Parliament. Northern Ireland legislation, therefore, is excluded (although consequential amendments to Northern Ireland legislation may be made using the power in clause 1(5)(c)). Northern Ireland has in the past made its own provision to mirror deregulation orders.

44. The text in parentheses in subsection (2)(a) makes clear that the legislation addressed by the order need not have been commenced. Instances where an order would be used to address uncommenced legislation are not expected to be frequent. However, it would allow the power to address cases such as the Sexual Offences (Protected Material) Act 1997, which creates a statutory scheme for supervising the defendant's access to victim material in sexual offences cases (with the intention that this material cannot be circulated as a form of pornography). The Act, if commenced, would make it an offence for the defendant to have unsupervised access to the material or for any other person to whom the material is given to breach the requirements of the scheme. It appears, however, that (because of an oversight when preparing the legislation) there are significant problems with even the defence legal team viewing the material. This makes the Act unworkable, and so it has never been commenced. It is a burden on the defence legal team and others not to be able to handle the material in the normal way. It is also a burden on the alleged victim of the sexual offence that she is unable to benefit from the protections intended by Parliament when the legislation was passed. Although cases of uncommenced legislation imposing burdens arise infrequently, the burdens can be significant and the provision in subsection (2)(a) will allow them to be addressed by regulatory reform order.

45. Subsection (2)(b) makes clear that deregulation orders made under section 1 of the DCOA and regulatory reform orders, if they fall within the purpose of clause 1(1), may themselves be the subject of orders. The DCOA and the Bill itself, once it becomes an Act, will be excluded because neither imposes burdens affecting persons in the carrying on of an activity. In any case, as the DCOA will only be preserved for devolved matters in Scotland (cf clause 12(1)(b)), it would not be a candidate for regulatory reform orders (which will be made at Westminster) as to do so would be at odds with the devolution settlement.

46. The remainder of subsection (2) sets out the arrangements with regard to legislation that has been devolved to Scotland. In order to reflect the devolution settlement, the power does not extend to legislation which is within the devolved competence of the Scottish Parliament. But, as explained below, clause 12(1)(b) preserves the DCOA for use by Scottish Ministers.

47. The effect of subsection (3) is that the power cannot be used to address any legislation which has been amended in the last two years, other than consequentially or incidentally. However, such legislation can be re-enacted without substantive change as part of a wider reform.

48. Subsection (4) reflects the Welsh devolution settlement. It provides that the consent of the National Assembly for Wales would be required for any order that sought to remove or modify any function of the Assembly. The order-making power itself is not available to the Welsh Assembly.

49. Subsection (5)(a) makes clear that an order may amend or repeal any enactment in pursuance of reforming the burdensome legislation referred to in subsection (1). Paragraph (b) makes clear that burdens may be imposed on Ministers (cf clause 2(1), as described in paragraph 57 below, which excludes from the definition of "burden" any burden which affects only Ministers or government departments.) The effect of the two subsections is that, while a burden which falls solely on Ministers or departments may not be removed by regulatory reform order, such a burden may be imposed. Under section 43(1) of the Government of Wales Act 1998, the same applies to the National Assembly for Wales. Paragraph (c) provides a general power to make incidental, consequential, transitional or supplementary provision in standard terms to primary or secondary legislation. This could include amendment or revocation of secondary legislation, although this will normally be done by amending or remaking the instrument concerned under the existing power.

Clause 2: Meaning of "burden" and related expressions

50. This clause is key to the understanding of what the order-making power is designed to achieve. Subsection (1)(a), which reflects section 1(5)(b) of the DCOA, is intended to ensure that a "burden" includes:

  • restrictions on the carrying on of particular activities. This allows the order-making power to deal with cases where there is an explicit ban on something being done (a "thou shalt not" provision such as was addressed in the Deregulation (Long Pull) Order (SI no. 1996/1339) as detailed at paragraph 13 of Annex A below). It also covers cases where there is a restriction in the sense that the legislation contemplates a possibility and then sets a limit (referred to as the "implicit restriction" cases) (for example legislation which allowed building societies to borrow non-retail funds and deposits up to a maximum of 40% of the society's share and deposit liabilities - increased to 50% by the Deregulation (Building Societies) Order (SI no. 1995/3233) as detailed at paragraph 2 of Annex A below).

  • requirements, including procedural requirements. For example, the requirement for purchasers of corn to submit weekly returns to central government, which was addressed by the Deregulation (Corn Returns Act 1882) Order (SI no. 1996/848) (paragraph 6 of Annex A).

  • conditions, for example, the 48-hour waiting period before a person can become a member of a gaming club, which was reduced to 24 hours by the Deregulation (Casinos) Order (SI no. 1997/950) (paragraph 26 of Annex A). "Condition" catches a different category of measure from "requirement" because it refers to procedures which affect people only if they wish to achieve a certain result (such as becoming a member of a gaming club) rather than a requirement which must be met in all cases;

  • sanctions (whether criminal or otherwise) for failure to observe a restriction or to comply with a requirement or condition. This provision makes clear that a sanction alone may be a burden for the purpose of this Bill, even if the requirement, restriction of condition to which it relates is not being modified by the order. An order could thus, for example, leave a restriction unchanged but impose a civil rather than a criminal penalty. Equally, but in practice likely to be exceptionally, an order could replace a civil penalty with a criminal one provided the tests were met. Criminal sanctions can in practice be less burdensome than civil sanctions, particularly where civil liability then does not attach. In addition, the higher burden of proof needed to justify the imposition of criminal sanctions may give greater protection to the accused.

51. Restrictions, requirements and conditions in legislation can make it burdensome. However, it is important to understand that even legislation which includes restrictions, requirements or conditions may be enabling in that it allows people to do things but at the same time sets the boundaries within which they can do it. In such cases if the legislation were not there at all, they would not be able to do it at all. The legislation only becomes burdensome when the boundaries are not wide enough, and perceptions of that are likely to change over time and with circumstance.

52. The DCOA includes in the definition of "restrictions, requirements and conditions" those requiring the payment of fees. Subsection (1)(a) extends this to cover those which prevent the incurring of expenditure.

53. Subsection (1)(b) expressly provides that in addition "burden" includes any limit on the statutory powers of any person. This means that an order under this provision may extend the statutory powers of a person, hence enabling them to do something which they could not otherwise do because there is no statutory provision for them to do it. This aspect of the power is aimed at dealing with cases where there is clearly a limit on what someone can do but there is no "restriction" in the sense it is now used in subsection (1)(a), as described above. Early in the life of the DCOA, a number of deregulation orders were passed which in practice empowered people to do things they could not otherwise do. These orders drew on the range of statutory concepts which now appear in subsection (1)(a), sometimes in combination.

Example 1

The very first deregulation order, the Deregulation (Greyhound Racing) Order (SI no. 1995/3231), made new provision for inter-track totalisator betting. There was no explicit restriction in statute prior to the order being made (i.e. nothing which expressly prohibited inter-track totalisator betting on greyhound races), but there was an implicit restriction in that provision was made for inter-track totalisator betting on horse races but not on greyhound races. The order set out that inter-track totalisator betting on greyhound races was permissible, and set out a new regulatory regime governing it.

Example 2

The Deregulation (Bills of Exchange) Order (SI no. 1996/2993) made new provision empowering bankers to present cheques for payment by notification of their essential features by electronic means, rather than by their physical presentment. Here there was clearly no explicit or implicit restriction on electronic notification in the relevant legislation; electronic transmission was an alien concept when the Bills of Exchange Act was passed in 1882 and the idea that there was any possibility other than physical presentment was simply not contemplated. The burden of the requirement for physical presentment and the inability to take full advantage of advances in technology was removed. New provision was made to enable the electronic system (which was already operating alongside physical presentment) to take the place of physical presentment for legal purposes.

54. However, there can be difficulties unless there is express provision for people to be empowered to do things.

Example 3

The Trustee Investments Act 1961 provides default powers that, inter alia, enable trustees to invest in some things but not others. The proposed Deregulation (Trustee Investments) Order, laid in February 1997, sought to remove the restriction on what trustees could invest in, thus enabling them to invest in whatever they chose. An argument could be mounted that legally the 1961 Act was in fact a liberating measure, set against the common law and statutory history of gradual easing of investment powers. If the 1961 Act were not in existence, trustees without explicit or sufficiently wide powers of investment in their trust documents would be able to invest in even fewer things. So it could be argued that the 1961 Act legally defined rather than restricted trustees' default powers. But, in reporting on this proposed deregulation order, the House of Lords Delegated Powers and Deregulation Committee, which scrutinises deregulation orders, was satisfied that in present day circumstances the Act constituted a restriction and therefore a burden. However, the proposal was not pursued following cautious advice that there was a risk that the order could be held to be ultra vires on the basis of a narrow view of "restriction". If widows and orphans had lost as a result of trustees reasonably investing on the basis of the order, either the trustees or perhaps the Government could have been liable.

The risks in this case outweighed the benefits of early change which would have resulted from a deregulation order. The change has since been taken forward as part of the Trustee Act 2000.

Example 4

The governors of maintained schools, as creatures of statute, only have power to do things for educational purposes. Their powers are limited to those set out in legislation. There is power to enable them to let out their premises in the evenings for activities such as art classes for adults, and such arrangements are common. However, what they do is simply to make their facilities available, often for a fee. They are not permitted to run activities themselves, unless the activity is related to or incidental to providing education, and so the actual provision is not by the school but by someone else.

The Government would like to use an order under the new power to confer on governing bodies power to provide pure childcare. There is no specific statutory restriction on schools offering childcare. But there is no provision for them to do it either, as set out above. This lack of provision is a limit on what they can do and a restriction in the natural meaning of the word. An order to effect this change would rely on clause 2(1)(b).

55. The express reference to "any limit" in subsection (1)(b) is designed to provide a straightforward and explicit basis for orders which empower people to do things they are not currently able to do, covering cases in the future of a kind such as trustee investments and after-school childcare.

56. The text in parentheses in subsection (1)(b) makes clear that an order which enables something to be done may authorise expenditure. This would allow, for example, the statutory definition of physical training and recreation to be amended to include chess and other "mind games" so that, among other things, they would be allowed access to the Lottery Sports Fund in England.

57. The remainder of subsection (1) excludes from the definition of "burden" any burden that only affects a Minister of the Crown or government department. This means that, while local authorities, schools, hospitals, non-departmental public bodies and other public sector bodies could be the sole beneficiaries of an order, Ministers and government departments cannot be the sole beneficiaries; someone else must also benefit.

58. Subsection (2) makes clear that any reference to creating, imposing, removing or reducing burdens applies not only to free-standing burdens but also to situations where the law authorises or requires a burden to be imposed. This will allow orders to deal with cases where the primary legislation itself cannot be said to impose a burden because all it does is confer a power, but where what can be done under the power is burdensome.

Clause 3: Limitations on the order-making power

59. This clause constrains the order-making power by imposing three tests, and the Minister proposing an order would be required to seek views on the extent to which the proposal met the safeguards as part of the prior consultation exercise, required under clause 5.

60. The first test, in subsection (1)(a), demands that the Minister making the order must be of the opinion that it does not remove any necessary protection. This test is reproduced from section 1(1)(b) of the DCOA, and has been applied by the Deregulation Committees widely and robustly. No order can be made unless the Minister is of the opinion that it would maintain any protections that the Minster considers to be necessary. Such protection relates to the checks and balances associated with a particular regulatory regime. The protection does not have to be expressly provided for in statute - an order may replace a protection that was statutory in origin with something non-statutory provided that the Committees could be convinced that there is a guarantee in practice that doing so would maintain necessary protection for the future. They have accepted in principle that protection can be provided in other, non-statutory, forms such as Codes of Practice or British or international standards. The protection also does not have to be for the purposes originally intended by Parliament. For instance, the Sunday trading laws were passed for reasons of religious observance whereas now they are just as likely to be seen as providing protection for employees. The concept of necessary protection can relate to economic, health and safety protection and the protection of civil liberties. It can also extent to protection for the environment and national heritage. Not all protection need be seen as necessary. For example, the law forbidding 16- and 17-year-olds from working in the bar areas of public houses was amended in 1997. The legal protection of young people in these circumstances was no longer deemed necessary, although the Department involved had to provide compelling evidence to support this view (see paragraph 27 in Annex A).

61. The second test, in subsection (1)(b), demands that the Minister making the order must be of the opinion that it will not prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise. This "reasonable expectations" test is new to the Regulatory Reform Bill. It recognises that there are certain rights that it would not be fair to take away from people under these procedures, and has certain parallels with the concept of legitimate expectations, but goes further than the minimum human rights guarantees. It is an additional safeguard, intended to form a stiff test for potential orders, in particular those which would remove or reduce burdens on the public sector. Ministers bringing forward orders will need to have consulted thoroughly on the relevant issues and to have given careful consideration to what constitutes "reasonable expectation", as will the scrutiny Committees.

62. Subsection (2) sets out a further test governing the imposition of new burdens (the other, the requirement for proportionality, being in clause 1(1), as described in paragraph 41 above). It states that the Minister must be of the opinion that the provisions of the order, taken as a whole, strike a fair balance between the public interest and the interests of the persons affected by the burden being created. To return to the illustrative example used in paragraph 41 above, the Minister may feel that there is a need to maintain or improve the protection of consumers afforded by a licensing regime at the same time as reducing the overall burden of the regime. This might be achieved by imposing a less onerous licensing requirement on a greater number of licensees. Again, whatever the Minister decides, he must explain his reasoning in the document he lays before Parliament under clause 6.

63. The further limitations on the power included in this clause reflect provision made in the DCOA. Subsection (3) sets the maximum penalties that can be imposed for a new criminal offence created by an order under the power. The maximum penalty can be higher when the offender is convicted on indictment (in the Crown Court in England or Wales, and in the High Court or the Sheriff's Court in Scotland) than when he is convicted summarily (in a Magistrates' Court in England and Wales and in the Sheriff's Court in Scotland). The maximum penalty is two years' imprisonment and/or an unlimited fine on indictment or six months' imprisonment and/or a fine of £5,000 on summary conviction.

64. Some offences are triable either summarily or on indictment, and subsection (4) ensures that the relevant limits in subsection (3) apply to these cases.

65. Subsection (5) limits the enforcement powers which can be conferred by a regulatory reform order. Powers of forcible entry, search and seizure, and powers to compel people to give evidence, may only be conferred in similar circumstances to provision made for that purpose in the legislation being reformed.

previous Section contents continue
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries index

© Parliamentary copyright 2000
Prepared: 8 December 2000