FIRST SPECIAL REPORT
The Deregulation Committee has agreed to the following
THE FUTURE OF THE DEREGULATION PROCEDURE
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.
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",
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.
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.
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
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,
and suggested that Departments were not innately orientated towards
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
THE CONSULTATION DOCUMENT
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".
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.
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.
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.
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
9. The previous Committee also accepted a proposal
which removed a burden on private building inspectors, but imposed
a smaller burden on local authorities.
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
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 .
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.
12. Lord Haskins acknowledged that the pursuit of
Better Regulation might involve transferring burdens from one
group to another.
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."
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.
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
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
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.
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".
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.
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.
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
The consultation document underlines that this power would only
be used "where the Minister concerned could prove that the
ambiguity imposed a genuine burden.".
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
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
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
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.
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".
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.
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.
The Government's objective is "to remove unnecessary barriers
to the modernisation of the way in which government is conducted".
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.
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.
Future governments might seek to bring forward significant proposals
that relieve public bodies of certain statutory duties.
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
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?"
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
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.
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.
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.
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
"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".
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
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
"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
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.
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.
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.
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 Sessionand
would also allow the amendment of regulations made under the European
Communities Act 1972.
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;
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.
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.
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.
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,
a broad power. We therefore questioned why the provision was necessary
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.
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.
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
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".
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".
It acknowledges that a new burden might "restrict or limit
a legal right that an individual or a business might otherwise
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,
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.
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.
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.
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.
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.
PUBLICATION OF AMENDING BILL IN DRAFT
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.
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.
NAME OF THE COMMITTEE
56. We note that one of the key tests of a Deregulation
proposal is that it should remove or reduce a burden;
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
document, entitled Proposed Amendments to the Dergulation and
Contracting Out Act 1994, paragraph 2. Back
Deregulation Procedure: an Evaluation;
Professor David Miers. Back
10 Consultation document, paragraph 14. Back
also The Deregulation Procedure: An Evaluation: Professor
David Miers. Back
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
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
document, paragraph 14. Back
15 Q55. Back
16 Q56. Back
17 Q28. Back
18 Q26. Back
of Good Regulation, published
1998 by the Better Regulation Task Force. Back
Deregulation Procedure: An Evaluation;
Professor David Miers. Back
21 Q85. Back
22 ibid. Back
document, paragraph 14. Back
paragraphs 22-24. Back
25 Q62. Back
26 Consultation document, paragraph
27 Q64. Back
document, paragraph 24. Back
29 Q95. Back
1(1)(a) of the 1994 Act. Back
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
document, paragraph 29. Back
33 ibid. Back
34 Q82. Back
35 Q101. Back
36 ibid. Back
Deregulation Procedure: An Evaluation;
Professor David Miers. Back
38 ibid. Back
document, paragraph 42. Back
40 Q75. Back
41 Q113. Back
42 Q111. Back
43 ibid. Back
44 ibid. Back
page xx. Back
1(5)(c) of the 1994 Act. Back
document, paragraph 44. Back
paragraph 39. Back
49 Q76. Back
50 Consultation document,
paragraph 38. Back
51 Ibid. Back
52 Q72. Back
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
63 HC 190, Session 1997-98. Back
64 Section 1(1)(b) of the 1994 Act. Back