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Legislative and Regulatory Reform Bill


Legislative and Regulatory Reform Bill
Part 1 — Order-making powers

1

 

A

Bill

[AS AMENDED ON REPORT]

To

enable provision to be made for the purpose of removing or reducing burdens

resulting from legislation and promoting regulatory principles; to make

provision about the exercise of regulatory functions; to make provision about

the interpretation of legislation relating to the European Communities and the

European Economic Area; to make provision relating to section 2(2) of the

European Communities Act 1972; and for connected purposes. 

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Part 1

Order-making powers

Powers

1       

Power to remove or reduce burdens

(1)   

A Minister of the Crown may by order under this section make any provision

5

which he considers would serve the purpose in subsection (2).

(2)   

That purpose is removing or reducing any burden, or the overall burdens,

resulting directly or indirectly for any person from any legislation.

(3)   

In this section “burden” means any of the following—

(a)   

a financial cost;

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(b)   

an administrative inconvenience;

(c)   

an obstacle to efficiency, productivity or profitability; or

(d)   

a sanction, criminal or otherwise, which affects the carrying on of any

lawful activity.

 
HL Bill 16154/1
 
 

Legislative and Regulatory Reform Bill
Part 1 — Order-making powers

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(4)   

Provision may not be made under subsection (1) in relation to any burden

which affects only a Minister of the Crown or government department, unless

it affects the Minister or department in the exercise of a regulatory function.

(5)   

For the purposes of subsection (2), a financial cost or administrative

inconvenience may result from the form of any legislation (for example, where

5

the legislation is hard to understand).

(6)   

In this section “legislation” means any of the following or a provision of any of

the following—

(a)   

a public general Act or local Act (whether passed before or after the

commencement of this section), or

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(b)   

any Order in Council, order, rules, regulations, scheme, warrant,

byelaw or other subordinate instrument made at any time under an Act

referred to in paragraph (a),

   

but does not include any instrument which is, or is made under, Northern

Ireland legislation.

15

(7)   

Subject to this Part, the provision that may be made under subsection (1)

includes—

(a)   

provision abolishing, conferring or transferring, or providing for the

delegation of, functions of any description,

(b)   

provision creating or abolishing a body or office,

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and provision made by amending or repealing any enactment.

(8)   

An order under this section may contain such consequential, supplementary,

incidental or transitional provision (including provision made by amending or

repealing any enactment or other provision) as the Minister making it

considers appropriate.

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(9)   

An order under this section may bind the Crown.

(10)   

An order under this section must be made in accordance with this Part.

2       

Power to promote regulatory principles

(1)   

A Minister of the Crown may by order under this section make any provision

which he considers would serve the purpose in subsection (2).

30

(2)   

That purpose is securing that regulatory functions are exercised so as to

comply with the principles in subsection (3).

(3)   

Those principles are that—

(a)   

regulatory activities should be carried out in a way which is

transparent, accountable, proportionate and consistent;

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(b)   

regulatory activities should be targeted only at cases in which action is

needed.

(4)   

Subject to this Part, the provision that may be made under subsection (1) for the

purpose in subsection (2) includes—

(a)   

provision modifying the way in which a regulatory function is

40

exercised by any person,

(b)   

provision amending the constitution of a body exercising regulatory

functions which is established by or under an enactment,

(c)   

provision transferring, or providing for the delegation of, the

regulatory functions conferred on any person,

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Legislative and Regulatory Reform Bill
Part 1 — Order-making powers

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and provision made by amending or repealing any enactment.

(5)   

The provision referred to in subsection (4)(c) includes provision—

(a)   

to create a new body to which, or a new office to the holder of which,

regulatory functions are transferred;

(b)   

to abolish a body from which, or office from the holder of which,

5

regulatory functions are transferred.

(6)   

The provision that may be made under subsection (1) does not include

provision conferring any new regulatory function or abolishing any regulatory

function.

(7)   

An order under this section may contain such consequential, supplementary,

10

incidental or transitional provision (including provision made by amending or

repealing any enactment or other provision) as the Minister making it

considers appropriate.

(8)   

An order under this section may bind the Crown.

(9)   

An order under this section must be made in accordance with this Part.

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Restrictions

3       

Preconditions

(1)   

A Minister may not make provision under section 1(1) or 2(1), other than

provision which merely restates an enactment, unless he considers that the

conditions in subsection (2), where relevant, are satisfied in relation to that

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provision.

(2)   

Those conditions are that—

(a)   

the policy objective intended to be secured by the provision could not

be satisfactorily secured by non-legislative means;

(b)   

the effect of the provision is proportionate to the policy objective;

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(c)   

the provision, taken as a whole, strikes a fair balance between the

public interest and the interests of any person adversely affected by it;

(d)   

the provision does not remove any necessary protection;

(e)   

the provision does not prevent any person from continuing to exercise

any right or freedom which that person might reasonably expect to

30

continue to exercise;

(f)   

the provision is not of constitutional significance.

(3)   

A Minister may not make provision under section 1(1) or 2(1) which merely

restates an enactment unless he considers that the condition in subsection (4) is

satisfied in relation to that provision.

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(4)   

That condition is that the provision made would make the law more accessible

or more easily understood.

(5)   

In this section and sections 4 to 7, to “restate” an enactment means to replace it

with alterations only of form or arrangement (and for these purposes to

remove an ambiguity is to make an alteration other than one of form or

40

arrangement).

 
 

Legislative and Regulatory Reform Bill
Part 1 — Order-making powers

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4       

Subordinate legislation

(1)   

An order under this Part may only confer or transfer a function of legislating

on or to—

(a)   

a Minister of the Crown;

(b)   

any person on or to whom functions are conferred or have been

5

transferred by an enactment; or

(c)   

a body which, or the holder of an office which, is created by the order.

(2)   

An order under this Part may not make provision for the delegation of any

function of legislating.

(3)   

An order under this Part may not make provision to confer a function of

10

legislating on a Minister of the Crown (alone or otherwise) unless the

conditions in subsections (4) and (5) are satisfied.

(4)   

The condition in this subsection is that the function is exercisable by statutory

instrument.

(5)   

The condition in this subsection is that such a statutory instrument—

15

(a)   

is an instrument to which section 5(1) of the Statutory Instruments Act

1946 (c. 36) applies (instruments subject to annulment by resolution of

either House of Parliament); or

(b)   

is not to be made unless a draft of the statutory instrument has been laid

before and approved by a resolution of each House of Parliament.

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(6)   

Subsections (1) to (3) do not apply to provision which merely restates an

enactment.

(7)   

For the purposes of this section a “function of legislating” is a function of

legislating by order, rules, regulations or other subordinate instrument.

5       

Taxation

25

(1)   

An order under this Part may not make provision to impose, abolish or vary

any tax.

(2)   

The Treasury may by regulations make provision for varying the way in which

a relevant tax has effect in relation to—

(a)   

any property, rights or liabilities transferred by or under an order

30

under this Part; or

(b)   

anything done for the purposes of, or in relation to, the transfer of any

property, rights or liabilities by or under an order under this Part.

(3)   

The provision which may be made under subsection (2)(a) includes in

particular provision for—

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(a)   

a tax provision not to apply, or to apply with modifications, in relation

to any property, rights or liabilities transferred;

(b)   

any property, rights or liabilities transferred to be treated in a specified

way for the purposes of a tax provision;

(c)   

the Minister of the Crown making the order to be required or

40

permitted, with the consent of the Treasury, to determine, or specify the

method for determining, anything which needs to be determined for

the purposes of any tax provision so far as relating to any property,

rights or liabilities transferred.

 
 

Legislative and Regulatory Reform Bill
Part 1 — Order-making powers

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(4)   

The provision which may be made under subsection (2)(b) includes in

particular provision for—

(a)   

a tax provision not to apply, or to apply with modifications, in relation

to anything done for the purposes of or in relation to the transfer;

(b)   

anything done for the purposes of or in relation to the transfer to have

5

or not have a specified consequence or be treated in a specified way;

(c)   

the Minister of the Crown making the order to be required or

permitted, with the consent of the Treasury, to determine, or specify the

method for determining, anything which needs to be determined for

the purposes of any tax provision so far as relating to anything done for

10

the purposes of or in relation to the transfer.

(5)   

Regulations under subsection (2) are to be made by statutory instrument.

(6)   

A statutory instrument containing regulations under subsection (2) is subject

to annulment in pursuance of a resolution of the House of Commons.

(7)   

In this section—

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“relevant tax” means income tax, corporation tax, capital gains tax, stamp

duty or stamp duty reserve tax;

“tax provision” means a provision of an enactment about a relevant tax.

6       

Criminal penalties

(1)   

An order under this Part may not make provision to create a new offence that

20

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—

(i)   

imprisonment for a term exceeding the normal maximum term;

25

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—

(i)   

in the case of a summary offence, 51 weeks; and

30

(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

virtue of—

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(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

scale is to be construed as a reference to the statutory maximum.

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(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

a term of imprisonment of 51 weeks is to be read as a reference to six months.

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Legislative and Regulatory Reform Bill
Part 1 — Order-making powers

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(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 (c. 44) comes into force, the order must provide that,

in relation to an offence triable either way committed before that date, any

reference to a term of imprisonment of twelve months is to be read as a

5

reference to six months.

(6)   

Subsection (1) does not apply to provision which merely restates an enactment.

7       

Forcible entry etc

(1)   

An order under this Part may not make provision to—

(a)   

authorise any forcible entry, search or seizure; or

10

(b)   

compel the giving of evidence.

(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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8       

Excepted enactments

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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9       

Scotland

An order under this Part may not, except by virtue of section 1(8) or 2(7), make

provision which would be within the legislative competence of the Scottish

Parliament if it were contained in an Act of that Parliament.

10      

Northern Ireland

25

An order under this Part may not, except by virtue of section 1(8) or 2(7), make

provision to amend or repeal any Northern Ireland legislation.

11      

Wales

An order under this Part may not make any provision—

(a)   

conferring a function on the Assembly,

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(b)   

modifying or removing a function of the Assembly, or

(c)   

restating any provision which confers a function on the Assembly,

except with the agreement of the Assembly.

Procedure

12      

Procedure: introductory

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(1)   

An order under this Part must be made by statutory instrument.

(2)   

A Minister may not make an order under this Part unless—

 
 

Legislative and Regulatory Reform Bill
Part 1 — Order-making powers

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(a)   

he has consulted in accordance with section 13;

(b)   

following that consultation, he has laid a draft order and explanatory

document before Parliament in accordance with section 14; and

(c)   

the order is made, as determined under section 15, in accordance

with—

5

(i)   

the negative resolution procedure (see section 16);

(ii)   

the affirmative resolution procedure (see section 17); or

(iii)   

the super-affirmative resolution procedure (see section 18).

13      

Consultation

(1)   

If a Minister proposes to make an order under this Part he must—

10

(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;

15

(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 11);

(d)   

in such cases as he considers appropriate, consult the Law Commission,

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the Scottish Law Commission or the Northern Ireland Law

Commission; and

(e)   

consult such other persons as he considers appropriate.

(2)   

If, as a result of any consultation required by subsection (1), it appears to the

Minister that it is appropriate to change the whole or any part of his proposals,

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he must undertake such further consultation with respect to the changes as he

considers appropriate.

(3)   

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

have satisfied the requirements of this section, those requirements shall to that

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extent be taken to have been satisfied.

(4)   

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),

(b)   

consultation has at any time been undertaken in relation to the

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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

to the proposals.

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(5)   

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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