Legislative and Regulatory Reform Bill

House of Lords

Session 2005 - 06
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Legislative and Regulatory Reform Bill

Legislative and Regulatory Reform Bill
Part 1 — Order-making powers
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Taxation
(1)
An order under this Part may not make provision to impose or increase
taxation.
(2)
Subsection (1) does not apply to provision which merely restates an enactment.
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Criminal penalties
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(1)
An order under this Part may not make provision to create a new offence that
is punishable, or increase the penalty for an existing offence so that it is
punishable—
(a)
on indictment, with imprisonment for a term exceeding two years; or
(b)
on summary conviction, with—
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(i)
imprisonment for a term exceeding the normal maximum term;
or
(ii)
a fine exceeding level 5 on the standard scale.
(2)
In subsection (1)(b)(i), “the normal maximum term” means—
(a)
in relation to England and Wales—
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(i)
in the case of a summary offence, 51 weeks; and
(ii)
in the case of an offence triable either way, twelve months; and
(b)
in relation to Scotland or Northern Ireland, six months.
(3)
In the case of an offence which, if committed by an adult, is triable either on
indictment or summarily and is not an offence triable on indictment only by
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virtue of—
(a)
Part 5 of the Criminal Justice Act 1988 (c. 33), or
(b)
section 292(6) and (7) of the Criminal Procedure (Scotland) Act 1995
(c. 46),

the reference in subsection (1)(b)(ii) to a fine exceeding level 5 on the standard
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scale is to be construed as a reference to the statutory maximum.
(4)
If an order under this Part making provision creating an offence, or altering the
penalty for an offence, is made before the date on which section 281(5) of the
Criminal Justice Act 2003 (c. 44) comes into force, the order must provide that,
in relation to a summary offence committed before that date, any reference to
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a term of imprisonment of 51 weeks is to be read as a reference to six months.
(5)
If an order under this Part making provision creating an offence, or altering the
penalty for an offence, is made before the date on which section 154(1) of the
Criminal Justice Act 2003 comes into force, the order must provide that, in
relation to an offence triable either way committed before that date, any
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reference to a term of imprisonment of twelve months is to be read as a
reference to six months.
(6)
Subsection (1) does not apply to provision which merely restates an enactment.
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Forcible entry etc
(1)
An order under this Part may not make provision to—
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(a)
authorise any forcible entry, search or seizure; or
(b)
compel the giving of evidence.

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(2)
Subsection (1) does not prevent an order under this Part from extending any
power for purposes similar to those to which the power applied before the
order was made.
(3)
Subsection (1) does not apply to provision which merely restates an enactment.
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Excepted enactments
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An order under this Part may not make provision amending or repealing any
provision of—
(a)
this Part; or
(b)
the Human Rights Act 1998 (c. 42).
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Scotland
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An order under this Part may not, except by virtue of section 1(8), 2(5) or 3(5),
make provision which would be within the legislative competence of the
Scottish Parliament if it were contained in an Act of that Parliament.
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Northern Ireland
An order under this Part may not, except by virtue of section 1(8), 2(5) or 3(5),
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make provision to amend or repeal any Northern Ireland legislation.
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Wales
An order under this Part may not make any provision—
(a)
conferring a function on the Assembly,
(b)
modifying or removing a function of the Assembly, or
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(c)
restating any provision which confers a function on the Assembly,
except with the agreement of the Assembly.
Procedure
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Procedure: introductory
(1)
An order under this Part must be made by statutory instrument.
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(2)
A Minister may not make an order under this Part unless—
(a)
he has consulted in accordance with section 14;
(b)
following that consultation, he has laid a draft order and explanatory
document before Parliament in accordance with section 15; and
(c)
the order is made, as determined under section 16, in accordance
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with—
(i)
the negative resolution procedure (see section 17);
(ii)
the affirmative resolution procedure (see section 18); or
(iii)
the super-affirmative resolution procedure (see section 19).
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Consultation
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(1)
If a Minister proposes to make an order under this Part he must—

Legislative and Regulatory Reform Bill
Part 1 — Order-making powers
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(a)
consult such organisations as appear to him to be representative of
interests substantially affected by the proposals,
(b)
where the proposals relate to the functions of one or more statutory
bodies, consult those bodies, or persons appearing to him to be
representative of those bodies,
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(c)
consult the Assembly where the proposals, so far as applying in or as
regards Wales, relate to any matter in relation to which the Assembly
exercises functions (and where the Assembly’s agreement is not
required under section 12),
(d)
in the case of an order made under section 3, consult the Commission
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or Commissions whose recommendation or recommendations he is
proposing to implement, and
(e)
consult such other persons as he considers appropriate.

But this subsection does not apply to the extent that subsection (2) applies.
(2)
To the extent that a Minister proposes to make an order under section 3 for the
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purpose of implementing a recommendation of any one or more of the United
Kingdom Law Commissions without material changes, the Minister must
carry out such consultation as he considers appropriate having regard to the
consultation carried out by that Commission or those Commissions.
(3)
If, as a result of any consultation required by subsection (1) or (2), it appears to
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the Minister that it is appropriate to change the whole or any part of his
proposals, he must undertake such further consultation with respect to the
changes as he considers appropriate.
(4)
If, before the day on which this section comes into force, any consultation was
undertaken which, had it been undertaken after that day, would to any extent
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have satisfied the requirements of this section, those requirements shall to that
extent be taken to have been satisfied.
(5)
Where—
(a)
proposals for an order under this Part are the same as proposals for an
order under section 1 of the Regulatory Reform Act 2001 (c. 6),
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(b)
consultation has at any time been undertaken in relation to the
proposals under section 5 of that Act, and
(c)
that consultation satisfied the requirements of that section in relation to
the proposals,

the requirements of this section shall be taken to have been satisfied in relation
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to the proposals.
(6)
In subsection (1)(b) “statutory body” means—
(a)
a body established by or under any enactment; or
(b)
the holder of any office so established.
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Draft order and explanatory document laid before Parliament
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(1)
If, after the conclusion of the consultation required by section 14, the Minister
considers it appropriate to proceed with the making of an order under this
Part, he must lay before Parliament—
(a)
a draft of the order, together with
(b)
an explanatory document.
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(2)
The explanatory document must—

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(a)
explain under which power or powers in this Part the provision
contained in the order is made;
(b)
introduce and give reasons for the provision;
(c)
explain why the Minister considers that—
(i)
the conditions in section 4(2) are satisfied (where relevant); or
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(ii)
the condition in section 4(5) is satisfied;
(d)
in the case of an order under section 1, include, so far as appropriate, an
assessment of the extent to which the provision made by the order
would remove or reduce any burden or burdens (within the meaning
of subsection (2) of that section);
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(e)
identify and give reasons for—
(i)
any powers to legislate conferred by the order; and
(ii)
the procedural requirements attaching to those powers; and
(f)
give details of—
(i)
any consultation undertaken under section 14;
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(ii)
any representations received as a result of the consultation;
(iii)
the changes (if any) made as a result of those representations.
(3)
In the case of an order under section 3, the explanatory document must under
subsection (2)(b)—
(a)
identify the recommendations being implemented;
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(b)
identify the manner in which the order is intended to implement each
of the recommendations; and
(c)
give details of, and reasons for, any differences between the
recommendations and the Minister’s proposals.
(4)
Where a person making representations in response to consultation under
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section 14 has requested the Minister not to disclose them, the Minister must
not disclose them under subsection (2)(f)(ii) if or to the extent that to do so
would (disregarding any connection with proceedings in Parliament)
constitute a breach of confidence actionable by any person.
(5)
If information in representations made by a person in response to consultation
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under section 14 relates to another person, the Minister need not disclose the
information under subsection (2)(f)(ii) if or to the extent that—
(a)
it appears to the Minister that the disclosure of that information could
adversely affect the interests of that other person; and
(b)
the Minister has been unable to obtain the consent of that other person
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to the disclosure.
(6)
Subsections (4) and (5) do not affect any disclosure that is requested by, and
made to, a committee of either House of Parliament charged with reporting on
the draft order.
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Determination of Parliamentary procedure
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(1)
The explanatory document laid with a draft order under section 15 must
contain a recommendation by the Minister as to which of the following should
apply in relation to the making of an order pursuant to the draft order—
(a)
the negative resolution procedure (see section 17);
(b)
the affirmative resolution procedure (see section 18); or
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(c)
the super-affirmative resolution procedure (see section 19).

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(2)
The explanatory document must give reasons for the Minister’s
recommendation.
(3)
Where the Minister’s recommendation is that the negative resolution
procedure should apply, that procedure shall apply unless, within the 30-day
period—
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(a)
either House of Parliament requires that the super-affirmative
resolution procedure shall apply, in which case that procedure shall
apply; or
(b)
in a case not falling within paragraph (a), either House of Parliament
requires that the affirmative resolution procedure shall apply, in which
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case that procedure shall apply.
(4)
Where the Minister’s recommendation is that the affirmative resolution
procedure should apply, that procedure shall apply unless, within the 30-day
period, either House of Parliament requires that the super-affirmative
resolution procedure shall apply, in which case the super-affirmative
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resolution procedure shall apply.
(5)
Where the Minister’s recommendation is that the super-affirmative resolution
procedure should apply, that procedure shall apply.
(6)
For the purposes of this section a House of Parliament shall be taken to have
required a procedure within the 30-day period if—
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(a)
that House resolves within that period that that procedure shall apply;
or
(b)
in a case not falling within paragraph (a), a committee of that House
charged with reporting on the draft order has recommended within
that period that that procedure should apply and the House has not by
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resolution rejected that recommendation within that period.
(7)
In this section the “30-day period” means the period of 30 days beginning with
the day on which the draft order was laid before Parliament under section 15.
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Negative resolution procedure
(1)
For the purposes of this Part, the “negative resolution procedure” in relation to
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the making of an order pursuant to a draft order laid under section 15 is as
follows.
(2)
The Minister may make an order in the terms of the draft order subject to the
following provisions of this section.
(3)
The Minister may not make an order in the terms of the draft order if either
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House of Parliament so resolves within the 40-day period.
(4)
A committee of either House charged with reporting on the draft order may, at
any time after the expiry of the 30-day period and before the expiry of the 40-
day period, recommend under this subsection that no further proceedings be
taken in relation to the draft order.
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(5)
A recommendation may be made under subsection (4) only if the committee
considers that—
(a)
the provision made by the draft order does not serve the purpose
specified in section 1(2), 2(2) or 3(2) (as the case may be);
(b)
any relevant condition in section 4(2) is not satisfied in relation to any
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provision of the draft order referred to in section 4(1); or

Legislative and Regulatory Reform Bill
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(c)
the condition in section 4(5) is not satisfied in relation to any provision
of the draft order referred to in section 4(4).
(6)
Where a recommendation is made by a committee of either House under
subsection (4) in relation to a draft order, the Minister may not make an order
in the terms of the draft order unless the recommendation is, in the same
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Session, rejected by resolution of that House.
(7)
For the purposes of this section an order is made in the terms of a draft order
if it contains no material changes to the provisions of the draft order.
(8)
In this section—
(a)
the “30-day period” has the meaning given by section 16(7); and
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(b)
the “40-day period” means the period of 40 days beginning with the
day on which the draft order was laid before Parliament under section
15.
(9)
For the purpose of calculating the 40-day period in a case where a
recommendation is made under subsection (4) by a committee of either House
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but the recommendation is rejected by that House under subsection (6), no
account shall be taken of any day between the day on which the
recommendation was made and the day on which the recommendation was
rejected.
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Affirmative resolution procedure
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(1)
For the purposes of this Part the “affirmative resolution procedure” in relation
to the making of an order pursuant to a draft order laid under section 15 is as
follows.
(2)
If after the expiry of the 40-day period the draft order is approved by a
resolution of each House of Parliament, the Minister may make an order in the
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terms of the draft.
(3)
However, a committee of either House charged with reporting on the draft
order may, at any time after the expiry of the 30-day period and before the
expiry of the 40-day period, recommend under this subsection that no further
proceedings be taken in relation to the draft order.
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(4)
A recommendation under subsection (3) may be made only if the committee
considers that—
(a)
the provision made by the draft order does not serve the purpose
specified in section 1(2), 2(2) or 3(2) (as the case may be);
(b)
any relevant condition in section 4(2) is not satisfied in relation to any
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provision of the draft order referred to in section 4(1); or
(c)
the condition in section 4(5) is not satisfied in relation to any provision
of the draft order referred to in section 4(4).
(5)
Where a recommendation is made by a committee of either House under
subsection (3) in relation to a draft order, no proceedings may be taken in
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relation to the draft order in that House under subsection (2) unless the
recommendation is, in the same Session, rejected by resolution of that House.
(6)
For the purposes of subsection (2) an order is made in the terms of a draft order
if it contains no material changes to the provisions of the draft order.
(7)
In this section—
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Legislative and Regulatory Reform Bill
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(a)
the “30-day period” has the meaning given by section 16(7); and
(b)
the “40-day period” has the meaning given by section 17(8).
(8)
For the purpose of calculating the 40-day period in a case where a
recommendation is made under subsection (3) by a committee of either House
but the recommendation is rejected by that House under subsection (5), no
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account shall be taken of any day between the day on which the
recommendation was made and the day on which the recommendation was
rejected.
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Super-affirmative resolution procedure
(1)
For the purposes of this Part the “super-affirmative resolution procedure” in
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relation to the making of an order pursuant to a draft order laid under section
15 is as follows.
(2)
The Minister must have regard to—
(a)
any representations,
(b)
any resolution of either House of Parliament, and
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(c)
any recommendations of a committee of either House of Parliament
charged with reporting on the draft order,

made during the 60-day period with regard to the draft order.
(3)
If, after the expiry of the 60-day period, the Minister wishes to make an order
in the terms of the draft, he must lay before Parliament a statement—
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(a)
stating whether any representations were made under subsection
(2)(a); and
(b)
if any representations were so made, giving details of them.
(4)
The Minister may after the laying of such a statement make an order in the
terms of the draft if it is approved by a resolution of each House of Parliament.
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(5)
However, a committee of either House charged with reporting on the draft
order may, at any time after the laying of a statement under subsection (3) and
before the draft order is approved by that House under subsection (4),
recommend under this subsection that no further proceedings be taken in
relation to the draft order.
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(6)
A recommendation under subsection (5) may be made only if the committee
considers that—
(a)
the provision made by the draft order does not serve the purpose
specified in section 1(2), 2(2) or 3(2) (as the case may be);
(b)
any relevant condition in section 4(2) is not satisfied in relation to any
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provision of the draft order referred to in section 4(1); or
(c)
the condition in section 4(5) is not satisfied in relation to any provision
of the draft order referred to in section 4(4).
(7)
Where a recommendation is made by a committee of either House under
subsection (5) in relation to a draft order, no proceedings may be taken in
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relation to the draft order in that House under subsection (4) unless the
recommendation is, in the same Session, rejected by resolution of that House.
(8)
If, after the expiry of the 60-day period, the Minister wishes to make an order
consisting of a version of the draft order with material changes, he must lay
before Parliament—
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(a)
a revised draft order; and