APPENDIX
Proposal to extend the power to amend regulations
under the EC Act 1972
COMMITTEE REPORT
42. The Committee raised no objection to this proposal,
although indicated that it found it difficult to find examples
of cases where such a power might be useful.
GOVERNMENT RESPONSE
43. The Government is sympathetic to the difficulty
experienced by the Committee in finding examples of when the proposed
power might be used. The original proposal was to allow deregulation
orders to extend EU regulatory régimes into areas subject
to domestic law where it would be beneficial to do so, which would
remove the burden on business of the inability to take wider advantage
of Community developments. As the Committee recognised, any candidate
for this type of order would have to be sufficiently unrelated
to an EC Directive to debar it from being dealt with by the provisions
of section 2(2)(b) of the European Communities Act 1972, which
allows extension into areas related to the scope of the related
EC Directive.
44. Since publication of the consultation document,
however, it has become clear that this is a particularly sensitive
proposal for the Lords Delegated Powers and Deregulation Committee.
In that Committee's 19th report of this session, it
commented that "[it saw] it as a point of principle that
section 2(2) should not be used for matters which are not the
subject of a European obligation". On this basis, the Government
has recast this proposal slightly in order to bring it into line
with the alternative provision suggested by that Committee, which
was recently the subject of a new clause added to the Employment
Relations Bill to allow for extension of TUPE (Transfer of Undertakings
(Protection of Employment) Regulations). The result is the proposal
that, where regulations under section 2(2) of the ECA make provision
for the purpose of implementing, or for a purpose concerning,
a Community obligation of the UK, this power would allow Ministers
to propose deregulation orders to make the same or similar provision
in circumstances other than those to which the Community
obligation applies.
45. This proposal would allow use of the order-making
power to give effect to the extension of TUPE as described above,
had it not been dealt with by the Employment Relations Bill. This
is clearly a situation in which, it has been argued, it would
be beneficial to "clone" an EU regulatory régime
in an area of national competence. The Government is pressing
for better regulation in Europe, and this power would be extremely
useful in circumstances where the EU took deregulatory measures,
as it would enable the UK to take that deregulation a step further
by applying it to related issues, thereby increasing the deregulatory
effect. Use of the order-making power to give effect to such "cloning"
will, as always, reduce the pressure for time on the Floor of
the House.
46. As mentioned above, the proposal to amend the
Act specifically to deal with EC regulations will be closely linked
with the amended proposal on common law, which seeks a power to
allow Ministers to make orders to amend, extend or supplement
statutory provision to so as to further enable or facilitate things
which the provision in question does not prohibit but which cannot
otherwise lawfully be done.
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