Select Committee on Deregulation First Special Report


The Deregulation Committee has agreed to the following Report:-



1. On 2 March 1999, the Cabinet Office published a consultation paper entitled "Proposed Amendments to the Deregulation and Contracting Out Act 1994". The document outlined a set of proposals for enlarging the scope of the order-making powers laid out in sections 1 to 4 of the Deregulation and Contracting Out Act 1994 ("the 1994 Act").This Report is the Deregulation Committee's response to the consultation document.

Background to our inquiry

2. During the 1997-98 Session, a total of seven proposals for Deregulation Orders were laid before Parliament[1]. This compared to totals of 12 proposals in the short 1996-97 Session and 19 proposals in the 1995-96 Session. We were concerned at the small number of Deregulation proposals being brought forward and decided to take oral evidence from Dr David Clark, then Chancellor of the Duchy of Lancaster, to discuss the situation.

3. In evidence to us on 28 April 1998, Dr Clark stressed the value of the Deregulation process "as an important weapon in addressing unnecessary or over-burdensome regulation"[2], but acknowledged that he was disappointed with the number of proposals that had been brought forward. He reported that there were a number of areas of legislation in which it was hoped that Deregulation proposals would be made, and he added that, in collaboration with the Parliamentary Secretary at the Cabinet Office, Mr Peter Kilfoyle, he was endeavouring to raise interest in the Deregulation process within Government Departments[3].

4. Dr Clark believed that the powers available under the Deregulation and Contracting Out Act 1994 ("the 1994 Act") were unduly restricted, and proposed exploring the scope for reforming the 1994 Act[4]. He suggested that the Deregulation process could be amended to enable orders to be made to

  • permit amendment or repeal of post-1994 legislation;

  • allow removal of burdens from State regulators;

  • resolve ambiguities in legislation; and

  • address burdens arising from the evolution of case law[5].

5. We took evidence on 30 June 1998 from Lord Haskins, Chairman of the Better Regulation Task Force on the work and approach of the Task Force and the issues involved in examining regulatory frameworks. Lord Haskins noted that the Government had been slow to use the Deregulation process[6], and suggested that Departments were not innately orientated towards removing regulations[7]. He provided some useful insights into ways in which the Task Force examines areas of regulations, and seeks to apply the five principles of Better Regulation. These are that all regulations should be

  • consistent,

  • transparent,

  • targeted,

  • proportionate, and

  • accountable.


6. The consultation document acknowledges the rigour of the Parliamentary scrutiny of proposals for Deregulation Orders and draft Orders, declaring that in some respects it is "more thorough than that accorded to primary legislation"[8]. It argues that a consequent widening of the scope of the Deregulation process would therefore be justified and outlines a number of ways in which this could be done. We have examined each of these proposals in turn, and have come to the conclusions set out below.

7. In the course of our consideration of the consultation document, we took oral evidence from Mr Peter Kilfoyle, MP, Parliamentary Secretary at the Cabinet Office, and from Professor David Miers of Cardiff Law School. We are particularly grateful to Professor Miers, who has helped us informally in the past, and who provided us with a draft version of his paper on the Deregulation process[9].

Allowing a small increase in burdens on some parties

8. The previous Deregulation Committee held that it was beyond the scope of the Deregulation procedure for a proposal to impose new burdens on previously unaffected parties, albeit in the interests of wider deregulation. The consultation document proposes removing this restriction[10]. The previous Committee did in fact accept two proposals that did effectively transfer a burden, but on each occasion sought to impose strict limitations on such a practice[11]. In accepting a proposal to extend bookmakers' permits from one to three years, the Committee acknowledged that a significant one-off burden, estimated to be about £200,000, would be placed on the Horserace Betting Levy Board as it updated its computer system. Although acknowledging that this would be a one-off burden, the Committee was sufficiently concerned not to establish a principle of transferring burdens that it stated

"We wish nevertheless to emphasise that, as a general principle, we do not consider it acceptable that a deregulation proposal should relieve a burden on one part of an industry only to impose a substantial financial cost on another part of the industry."[12]

9. The previous Committee also accepted a proposal which removed a burden on private building inspectors, but imposed a smaller burden on local authorities[13]. Again the Committee noted that it would not necessarily accept such a transfer of a burden in future cases. It found that the order-making powers under the 1994 Act were not intended to provide for the re-scheduling of a regulatory régime to engineer a wholly new burden on a new party, or substantially to transfer such a burden.

10. The consultation document states the case for allowing small increases in burdens, or impositions of small burdens on some parties where a larger burden is being removed on other parties[14]. A regulatory impact assessment would be required to accompany any imposition of new regulation. The document cites as an example that the existing power could not be used to rationalise a system of licensing food shops if it meant that some shops that were previously exempt from the requirements would then be covered by a process that was much simpler and cheaper for a much larger number of shops. We found it useful to bear in mind such a proposal, which might bring great savings for large supermarkets, but impose a licensing burden on smaller food retailers, while we explored the principles involved.

11. Mr Kilfoyle's view was that, before making a proposal that transferred a burden or imposed one on a new party, a Minister would need to be convinced that the overall change would be in the interests of a "far greater good", and would need to satisfy the Committees in both Houses of the "proportionality" of the proposal [15]. He stated that there would be no legal definition of proportionality; this judgment would be at the discretion of the Committees, and of the Minister bringing the proposal forward[16].

12. Lord Haskins acknowledged that the pursuit of Better Regulation might involve transferring burdens from one group to another[17]. However, he also warned that:

"Regulation seems to us particularly to impinge on small businesses rather than large businesses. Large businesses rather like regulation as a way of creating competitive advantage."[18]

13. The Better Regulation Task Force identified "proportionality" as one of its Principles of Good Regulation (see paragraph 5), noting that this requirement entailed

  • full consideration of alternatives to regulation;

  • identification of the impact of any regulation on all those affected, establishing the right balance between risk and cost, and imposing no needless demands; and

  • ensuring that any enforcement action was in proportion to the seriousness of any offence committed under the regulation[19].

Principles such as these, together with the work of the Better Regulation Task Force, will provide a useful background to our future work.

14. The Government seems to see the "proportionality" of a proposal as a matter of "common sense" judgement on the part of the Ministers concerned and the two Parliamentary Committees rather than a defined legal concept. However, we note Professor Miers's view[20] that proportionality would, "if used as a test quickly assume the substance if not the form of a legal prescription." Thus he thought it helpful to consider the approach of courts, in particular the European Court of Justice, which applies a test which asks whether there is a reasonable relationship between a measure and its purpose. In this context the relevant question would be whether the benefit gained by the parties relieved of a burden bears a reasonable relationship to the burden imposed on those parties previously unaffected.

15. Professor Miers noted that it would be up to the Minister bringing the proposal forward to convince the Committees that all the implications of any new regulation had been taken into account; this would certainly justify the Committees in requiring evidence of ever more stringent consultation[21]. He left the question open as to "what further [the Committee] would want the Department to demonstrate in terms of consultation and continuation of necessary protection"[22].

16. We welcome the consultation document's commitment to producing a full regulatory impact assessment for any new or transferred regulatory burden, and its acknowledgement that any additional burden would be subject to widespread consultation with all those affected[23]. We emphasise that in considering any proposal that transferred a burden or imposed one on a new party, we would be particularly concerned that consultation had been appropriate. Imposing a burden on a new party may well generate objections from that party, but we would want to see that a Department was fully aware of those objections, and of how the affected party perceived the new burden.

17. We would examine any such proposal paying particular attention to consultation and an assessment of proportionality, as outlined above, and would expect evidence that the Department had taken proper account of these points. Given these safeguards, we do not object to an extension of the order-making power to provide for the imposition of some additional burdens whilst providing for wider deregulation.

Removing ambiguities in the law

18. The consultation document proposes to amend the 1994 Act to allow for the removal of ambiguities in legislation which created a burden in one of the following three ways:

  • where the wording of legislation is obscure (although the meaning is thought to be clear);

  • where the effect of a deregulation order is to make the wording more complex and the current power is inadequate for the re-writing of amended sections; and

  • where the law is ambiguous and no one knows what the true construction should be[24].

19. Mr Kilfoyle said that the provision for removal of ambiguities was not intended to be "an exercise in plain English", but was intended to remove the burden of ambiguity itself [25]. The consultation document underlines that this power would only be used "where the Minister concerned could prove that the ambiguity imposed a genuine burden."[26].

20. If the meaning of apparently ambiguous legislation were thought to be clear, we are not convinced that the "ambiguity" would constitute a burden. We also think that existing section 1(4)(b) of the 1994 Act could be used to effect the re-casting of enactments consequent upon a Deregulation proposal[27]; however, we acknowledge the Minister's view that, in certain circumstances, section 1(4)(b) of the 1994 Act might be inadequate.

21. A more significant question arises on the third of the circumstances listed in paragraph 18. If a clause is ambiguous, then it may be interpreted in at least two ways, which may be more or less burdensome. To take the example in the consultation document[28], if ambiguity exists as to whether a bottle of wine offered as a prize in a raffle requires a liquor licence, then the possible interpretations are either that a licence is required or it is not. It is then a matter of choice as to which construction is preferred.

22. If it is decided that the less or least regulatory option is to be pursued, it could be argued that the existing order-making powers in the 1994 Act would be sufficient. A Minister could acknowledge that there was some ambiguity as to legal construction, but would assume the most deregulatory construction and then amend it. However, we understand that this third provision would not necessarily be limited to removing burdens that may or may not apply. Conceivably, a Department could opt for the interpretation of an ambiguity that actually imposed a burden[29].

23. The purpose of this provision is to remove the burden of ambiguity. We acknowledge that, in clarifying legislation, the most deregulatory interpretation may not be taken as a matter of course. A proposal that clarified an ambiguity and in effect imposed a minimal burden that may or may not have been there already would in theory be acceptable under the proposed extension of the order-making powers. We do not object to this idea but, as with consideration of any proposal that imposed an additional burden (see paragraphs 8 to 17 above), we would need to be satisfied that the burden to be imposed was less than the burden being removed. We would expect a regulatory impact assessment and appropriate consultation. However, in practice, we would expect that any new burden imposed by a proposed clarification could be little more than nominal if it were to constitute a lesser burden than that imposed by the existing ambiguity. With the reservations outlined in this paragraph, we have no objection to the extension of the order-making power to allow for the removal of ambiguities. We would, however, expect any such proposal to demonstrate that it was necessary to remove a burden of ambiguity, and was not just an exercise in re-drafting the law.

Burdens on government

24. The 1994 Act allows for the removal of a burden from "any person in the carrying on of any trade, business or profession, or otherwise"[30]. The definition of "otherwise"has been held to cover charities, voluntary organisations and individuals. In its consideration of the Proposal for the Deregulation (Civil Aviation Act 1982) Order 1997, the previous Committee concluded that the removal of a burden from a public regulatory authority, such as the Civil Aviation Authority, was not within the scope of the 1994 Act[31].

25. The consultation document proposes to extend the order-making power to allow statutory burdens to be removed from local and central government. It gives a number of examples of ways in which the process could be used to allow central and local government to be more effective by removing outdated requirements; these might include allowing receipt of documents or payments in electronic as well as paper form[32]. The Government's objective is "to remove unnecessary barriers to the modernisation of the way in which government is conducted"[33].

26. The Minister confirmed to us that this provision would not be restricted solely to matters of internal government administration; it could also cover services to the public[34]. Professor Miers noted that the consultation document implied that the burdens to be removed from government would be small, but that it did not follow that subsequent governments would set such a modest agenda for the procedure[35]. Future governments might seek to bring forward significant proposals that relieve public bodies of certain statutory duties.[36]

27. Each of the proposed extensions of the order-making power is predicated on the intensive scrutiny provided by the Parliamentary Committees. Professor Miers stresses that the Committees are effective in the scrutiny they provide, particularly examining witnesses from Departments and rigorously examining the consultation carried out[37]. However, he still asks, as a question of principle,

"should public authorities' duties where set in primary legislation be varied by the government otherwise than by a further Act of Parliament?"[38]

28. This is a potentially very far-reaching extension of the order-making power. The fact that it may be Government Departments themselves that benefit from the proposals being brought forward puts even greater emphasis on the independent scrutiny provided by the Committees, safeguarding in particular the rights and legitimate expectations of citizens. On balance, we feel that it can be left to the Parliamentary Committees to ask ourselves, as Professor Miers suggests,

"In our judgement, do we think that [a proposal's] significance or impact or extent, either singly or in combination, make it an appropriate use of the power?"

29. Removing restrictions on the conduct of better government could well be an appropriate use of the order-making power. We acknowledge that this would not necessarily be restricted to removing internal administrative restrictions, but could apply in a limited sense to services to the public. We believe that the safeguards of scrutiny will ensure that this power is appropriately exercised. We do not oppose such an extension in the order-making process.

Amendment of burdens imposed by the evolution of case law

30. The consultation document proposes that the order-making power could be used to remove burdens that have been imposed by the evolution of case law where no relevant statute is applicable[39]. We asked the Minister whether this proposal could be seen as constitutionally questionable, being an enlargement of the power of the executive at the expense of judicial independence.

31. Mr Kilfoyle did not consider this proposal to represent a significant constitutional step[40]. He argued that when anomalies arose in the evolution of common law, the redress was for Parliament to bring forward primary legislation to amend the law; Deregulation proposals were subject to rigorous Parliamentary scrutiny, and there was no reason why this process might not be suitable in certain cases.

32. Professor Miers was more sceptical about the constitutional probity of the proposal and its practical implications. It was clearly acceptable for primary legislation to be used to amend the common law in response to judicial decisions, but the question facing the Committee was whether it was acceptable to extend executive power to the extent of allowing secondary legislation to effect such amendments[41].

33. The 1994 Act had set its own constitutional precedent by allowing the general amendment of primary legislation by secondary legislation; this had been deemed acceptable because of the detailed scrutiny procedures established in Parliament. For his part, the Minister believed that this had worked so well that it was now reasonable to set a further constitutional precedent.

34. The constitutional question becomes more pertinent when this proposal is seen in conjunction with the proposal to remove burdens from state bodies. Professor Miers noted possible concerns

"If you start straying into the duties on a public body which have just been confirmed by the High Court on a judicial review application and the Government comes along shortly thereafter and thinks 'Well we had better change this', I can see the courts not going for that".[42]

35. In theory, such a situation could apply following judicial review proceedings relating to any public body, including agencies such as the Child Support Agency. The question remains whether the proposal to extend the order-making power in this way would open the door to some future inappropriate use of the procedure.

36. Professor Miers also raised practical concerns about this proposal. If a burden has been imposed by the evolution of case law, with no relevant statute, there is clearly no legal text to amend definitively. He was concerned that the proposed process of

"Devising a statutory instrument that is neither over-inclusive nor under-inclusive in terms of stating what the rule is and reversing it, then enacting that against a backdrop of just other common law rules seems to ... be possibly generative of ...anomaly.[43]"

37. He was concerned that the "piecemeal" amendment of common law in this way would create difficulties. If the burden to be removed were within a context of other common law rules, which, although clear in interpretation, would not have a definitive formulation, the impact of a Deregulation proposal could be to create more anomalies than it addressed. The approach of organisations such as the Criminal Law Revision Committee and the Law Commission was to look at the whole area of law[44]. He believed that it would be inappropriate for a proposal to seek to amend the common law without some formal reference to the statutory body whose duty it was to keep the law under review.[45]

38. In considering this proposal, which is certainly the most controversial of those outlined in the consultation document, we have taken account of not only the constitutional precedent that would be set, but also how the Deregulation procedure works in practice. We are not convinced that it is appropriate, in principle, for delegated legislation to be used to redress burdens generated by case law. As the House of Lords is no longer bound by its own precedents, then, if case law has come to impose an unnecessary burden, that can be resolved by a suitable case being taken to that Court. We believe that this is a more appropriate way to proceed. If piecemeal reform were to be attempted using a Deregulation Order, it would be likely to throw up more problems than it resolved. On balance, we oppose the proposed extension of the order-making power to allow removal of burdens imposed by the evolution of case-law. However, we might be able to reconsider this position if some way could be found to ensure that a Department had drawn on the advice of the Law Commission, or other equivalent statutory body, and that advice was communicated to the Committees.

Extending the power to amend regulations under the European Communities Act and enactments passed since 1993-94.

39. The 1994 Act provides for an order-making power to amend or repeal enactments which impose burdens; enactments are defined in the Act to comprise any Act of Parliament passed before or during the 1993-94 Session or any Order under section 1 of the 1994 Act[46]. The consultation document proposes to extend the definition of enactments in two ways. It would provide for amendment or repeal of legislation passed after the 1993-94 Session[47]and would also allow the amendment of regulations made under the European Communities Act 1972[48].

40. Mr Kilfoyle recognised that primary legislation may be found to have imposed, despite best intentions, burdens that prove unnecessary and that could appropriately be dealt with by Deregulation Orders[49]; this applies equally to legislation passed since the 1993-94 Session. Any proposal amending legislation passed after 1993-94 would be examined with the same diligence as other proposals and a Minister would still need to satisfy the Committees that the proposal was an appropriate use of the power that satisfied the established criteria. We see no reason why the procedure should be limited to legislation passed before 1993-94. We fully endorse the proposal to extend the order-making power to amend legislation passed after the 1993-94 Session.

41. The European Communities Act 1972 ("the 1972 Act") provides for regulations to be made implementing European Community obligations; the consultation document notes that such regulations are often similar in nature and scope to primary legislation, and it could be suggested that it is anomalous to exclude them from the order-making power[50]. The proposed power to amend regulations made under the 1972 Act would be used to extend legislation necessitated by a European Community obligation in one area to related areas where it would constitute a burden not to have a common approach in all areas[51]. The power would not be used to remove "gold-plating" (over-zealous implementation of an obligation, particularly one contained in a directive) in such regulations; if regulations under section 2(2) of the 1972 Act can be used to put on the "gold-plate", amending regulations under that section can remove it[52].

42. Section 2(2)(b) of the 1972 Act already allows Ministers to make regulations which deal with matters arising out of or related to the implementation of a Community obligation. That is, and has been held by the Courts to be[53], a broad power. We therefore questioned why the provision was necessary at all.

43. Mr Philip Bovey, Legal Adviser to the Better Regulations Unit, told us that the aim of this proposal is to extend enablements stemming from European Community directives[54]. In other words a directive, by requiring Ministers to do something which Parliament has not empowered them to do, confers on them a power to legislate (under section 2(2) of the 1972 Act) which they would not otherwise have. In evidence, Mr Bovey said that any extension of that power, taking advantage of section 2(2)(b) of the 1972 Act, has to be for a purpose which is related to the Community obligation and not for its own sake[55].

44. It follows that Ministers wish to be in a position to exercise the power to legislate in respect of matters which, although not related to the Community obligation imposed by the directive, would constitute a burden if the Community regime were not extended in that way. The example cited is that of the establishment in Member States, under an European Community directive, of a new form of unit trust called an open-ended investment company. The directive, and the UK implementing regulation under the 1972 Act, provided for investment by such a company in only listed securities. The proposed extension of the order-making power would enable a Deregulation proposal to allow a company to invest in other areas not provided for in the implementing regulation.

45. In our view, a Minister, robustly advised, could properly conclude that authorising an open-ended investment company to invest in wider categories of investment than those provided for in the relevant directive was a matter related to, or arising out of, the obligation to implement that directive. Be that as it may, we do not find the justification advanced for this extension to Ministers' powers wholly coherent. The subject matter of a deregulation order has to be sufficiently unrelated to the subject matter of the Community obligation to fall outside section 2(2)(b), but sufficiently related to it to make it beneficial to legislate on similar lines for the two matters. If, as the Better Regulation Unit's Legal Adviser appeared to suggest in evidence, the two matters were wholly unrelated, then it is questionable whether it could be a burden to have different régimes applicable to each matter.

46. But, nonetheless, the proposed extension of the power would still be governed by the requirement that it must reduce or remove a burden. We acknowledge the possibility (albeit somewhat remote) that a case may in future be identified in which a beneficial extension of a Community regime fell outside the scope of section 2(2)(b) properly interpreted. We therefore raise no objection in principle to the extension of the order-making power to include regulations made under the European Communities Act 1972.

Additional criteria

47. We examine proposals for Deregulation Orders against nine criteria, which are set out in Standing Order No. 141. The consultation document suggests that, as a consequence of the proposed changes, in addition to the existing criteria, any proposed order should be required to "strike a fair balance between the general interest of the community and the protection of the individual's rights"[56].

48. In discussing provision for imposition of small additional burdens, the consultation document states that the Minister would need to be satisfied that the new burden imposed on a new party was not disproportionate, and "did not adversely affect any right or freedom which those concerned might reasonably expect to be able to continue to enjoy"[57]. It acknowledges that a new burden might "restrict or limit a legal right that an individual or a business might otherwise enjoy"[58].

49. We welcome the emphasis that the Cabinet Office have placed on the protection of the individual's rights. Although this would certainly be covered by a rigorous consideration of whether a proposal maintained necessary protection[59], we believe that any amending legislation should specify such reasonable expectations of individuals as one of the requirements to be met by a Deregulation proposal. A consequent amendment would also have to be made to Standing Order No. 141(5)(A), to include this consideration within our criteria for assessing proposals.

Procedural changes

50. The consultation document suggests that where we report within the statutory 60 day period for Parliamentary consideration, a Department should be free to proceed with laying the draft order without waiting until the 60 days has expired.[60]

51. The Deregulation Committee has in the past produced interim reports on non-controversial proposals early in the 60 day period, but has not issued its final report until shortly before the end of the period in case representations received during the period prompt a reconsideration of the preliminary conclusions reached. The Committees often do receive correspondence right up to the end of the 60 day period. The sixty day period for Parliamentary scrutiny provides a valuable opportunity for the public to correspond with the Committees and make their views known. Consultation is at the heart of the Deregulation process, and the oral and written evidence that the Committees take is fundamental to their consideration of proposals. In addition, the activities of the Committees in conducting inquiries into proposals have served in the past to make members of the public aware that the proposal is being considered; we have previously received representations from individuals who were unaware that a proposal had been made until the Committees began their examinations.

52. Besides, we do not see what would be gained by allowing Departments to bring forward draft Orders before the end of the period, even for the most straightforward proposals. The potential penalty would be the Committee making a Report, and the Department laying a draft Order, before a new dimension to the proposal was brought to light. We do not believe that there is an argument for limiting the opportunities for the public to make representations to us. We therefore oppose the proposal to provide for Departments to lay draft Orders before the end of the sixty day period.

53. The consultation document also suggests that the second stage of Parliamentary scrutiny, the examination of draft Orders, could be dispensed with if the Committees did not recommend any amendment on consideration of the proposal[61]. There are two key considerations relating to this suggestion. When a draft Order is laid, Departments are currently under a duty to report on any representations that have been received during the 60 day period[62]. Most of this correspondence will also have been sent to the Committees, but not necessarily all. If the second stage of consideration were to be dispensed with in cases where no amendment was recommended to the proposal, this requirement would be affected. Whether or not any such representations might affect the Committee's view on a piece of legislation, this requirement provides an important safeguard to ensure that nothing is missed by the Committees. It would not be adequate for a Department to simply send correspondence through to the Committees at some later date.

54. In addition, an important safeguard of the current procedure is that a single Member of the Deregulation Committee can ensure one and a half hours' debate on a draft Order by voting against it at the second stage in Committee, regardless of whether the Committee previously recommended any amendment to the proposal. As the Government looks to expand the scope of the Deregulation order-making power, we do not believe that it would be right to diminish in any way the formal requirements for scrutiny by the Parliamentary Committees or the procedural opportunities for Members of the Committee to ensure debate on a draft Order.


55. In its Report on the Legislative Process, the Select Committee on the Modernisation of the House of Commons noted the value of pre-legislative scrutiny[63]. The Report also discussed possible roles for Select Committees in considering legislation in draft. The consultation document is, by necessity, expressed in general terms. We have talked in terms of principles, but the detailed provisions will be of paramount importance. It is therefore essential that we see and can report on a draft of the Bill to amend the 1994 Act in good time before the legislation is produced. The Parliamentary Committees are charged with making the procedure work and we should have the opportunity to examine in detail the terms within which we will be working. We strongly recommend that any bill for Amendment of the 1994 Act should be published in draft for consideration by this Committee and the House of Lords Committee.


56. We note that one of the key tests of a Deregulation proposal is that it should remove or reduce a burden;[64] this will continue to be the key test for any proposals brought forward under the proposed extensions of the order-making power. Although the work of the Committee will therefore continue to be concerned with deregulation, we do not feel that the name properly reflects the complexity of the work that we will be undertaking. Whilst seeking to remove burdensome regulation, we will also become engaged in a more complex consideration of regulatory principles. One possible change of name could reflect the work of the Better Regulation Task Force, whose activities we have referred to in paragraph 5 above. We recommend that consideration be given to changing the name of the Deregulation Committee.


57. The 1994 Act was seen as a considerable extension of executive power, justifying a rigorous procedure for Parliamentary Scrutiny. We believe that the Committees of both Houses have established constructive relationships with the Government, and these relationships have been integral to the effectiveness of the scrutiny conducted. Consequently, apart from the doubts that we have raised concerning proposals to address burdens arising from the evolution of case law, we support the proposals to widen the scope of the 1994 Act outlined in the consultation document.

58. The proposed extensions of the order-making power are potentially far-reaching and place an even greater importance on the effective functioning of the Deregulation procedure. We could therefore not agree to any dilution of the procedural safeguards of the Deregulation process.

59. The Deregulation procedure can be used to put through important legislation, subject to rigorous scrutiny, but without taking up time on the floor of the House. We have not yet had cause to recommend that a Deregulation draft Order be not made, or even to divide on such a recommendation. This has ensured that no time has been required on the floor of the House to debate a draft Order. This has been because, on each occasion that the Committee has raised doubts about a proposal, Departments have taken heed. If the scope of the power is widened, the maintenance of this constructive relationship will become even more important.

1  One of these was subsequently withdrawn: Proposal for the Deregulation (Occasional Licences) Order 1998. Back
2  Q1. Back
3  ibid. Back
4  ibid. Back
5  Q10. Back
6  Q26. Back
7  Q27. Back
8  Consultation document, entitled Proposed Amendments to the Dergulation and Contracting Out Act 1994, paragraph 2. Back
9  The Deregulation Procedure: an Evaluation; Professor David Miers. Back
10  Consultation document, paragraph 14. Back
11  See also The Deregulation Procedure: An Evaluation: Professor David Miers. Back
12  Fourth Report, Proposal for the Deregulation (Betting Licensing) Order 1996; Proposal for the Deregulation (Provision of School Action Plans) Order 1997, HC 138 of Session1996-97 (paragraph 7). Back
13  Fourteenth Report, Proposal for the Deregulation (Building)(Initial Notices and Final Certificates) Order 1996; Proposal for the Deregulation (Wireless Telegraphy) Order 1996; The Draft Deregulation (Gaming Machines and Betting Office Facilities) Order 1996; The Draft Deregulation (Industrial and Provident Societies) Order 1996, HC 377 of Session 1995-96 (paragraphs 23-25). Back
14  Consultation document, paragraph 14. Back
15  Q55. Back
16  Q56. Back
17  Q28. Back
18  Q26. Back
19  Principles of Good Regulation, published 1998 by the Better Regulation Task Force. Back
20  The Deregulation Procedure: An Evaluation; Professor David Miers. Back
21  Q85. Back
22  ibid. Back
23  Consultation document, paragraph 14. Back
24  ibid., paragraphs 22-24. Back
25  Q62. Back
26  Consultation document, paragraph 26. Back
27  Q64. Back
28  Consultation document, paragraph 24. Back
29  Q95. Back
30  Section 1(1)(a) of the 1994 Act. Back
31  Twelfth Report, Proposal for the Deregulation (Civil Aviation Act 1982) Order 1997; Proposal for the Deregulation (Non-Fossil Fuel) Order 1997; The Draft Deregulation (Casinos and Bingo Clubs: Debit Cards) Order 1997; The Draft Deregulation (Public Health Acts Amendment Act 1907) Order 1997, HC 387 of Session 1996-97 (paragraph14). Back
32  Consultation document, paragraph 29. Back
33  ibid. Back
34  Q82. Back
35  Q101. Back
36  ibid. Back
37  The Deregulation Procedure: An Evaluation; Professor David Miers. Back
38  ibid. Back
39  Consultation document, paragraph 42. Back
40  Q75. Back
41  Q113. Back
42  Q111. Back
43  ibid. Back
44  ibid. Back
45  Evidence, page xx. Back
46  Section 1(5)(c) of the 1994 Act. Back
47  Consultation document, paragraph 44. Back
48  ibid., paragraph 39. Back
49  Q76. Back
50  Consultation document, paragraph 38. Back
51  Ibid. Back
52  Q72. Back
53   R v Secretary of State for Trade and Industry ex parte Unison and others 1996: IRLR438; see also Q66. Back
54  Q71. Back
55  Q66. Back
56  Consultation document, paragraph 7. Back
57  Consultation document, paragraph 14. Back
58  ibid.,paragraph 15. Back
59  The consultation document acknowledges that "necessary protection" is not defined in the 1994 Act and "has been interpreted by the Parliamentary Committees quite widely" (paragraph 32). Back
60  Q78. Back
61  Consultation document, paragraph 60. Back
62  Section 4(4) of the 1994 Act. Back
63  HC 190, Session 1997-98. Back
64  Section 1(1)(b) of the 1994 Act. Back

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