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Regulatory Reform Bill [Hl]

These notes refer to the Regulatory Reform Bill [HL] as brought from the House of Lords on 26th February 2001 [Bill 51] Regulatory Reform Bill [Hl] EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Regulatory Reform Bill. They have been prepared by the Cabinet Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. SUMMARY 3. The main provision of the Regulatory Reform Bill is intended to remove some of the barriers to wider application of the deregulation order-making power under sections 1-4 of the Deregulation and Contracting Out Act 1994 (the DCOA). The new order-making power is intended to be wide enough, but no wider than necessary, to deal with regulatory reform measures which the Government wishes to achieve. In parallel with the widening of the power, the Bill adds to the tests and safeguards governing its use. This policy was the subject of a public consultation document published by the Cabinet Office on 2 March 1999. Both the Lords Delegated Powers and Deregulation Committee and the Commons Deregulation Committee reported on the proposals in their 14th and First Special Reports of the 1998-99 Session respectively (HL 55 and HC 324). The Government's formal responses to the two Committees' reports were also published in the Lords Committee's 28th Report of the 1998-99 Session (HL 111) and the Commons' Committee's First Special Report of the 1999-00 Session (HC 177). 4. The Bill also makes provision to replace section 5 of the DCOA, which is concerned with enforcement of regulations, replacing a little-used procedure with a reserve power for Ministers to set out a code of good practice in enforcement. The Cabinet Office published a consultation paper on this policy on 28 September 1999. The Lords Delegated Powers and Deregulation Committee commented briefly on the proposal in its 28th Report of 1998-99 (HL 111). 5. Both Committees scrutinised the draft Bill following its publication in a Command Paper (Cm 4713) in April 2000. Evidence was taken from Cabinet Officers Ministers, Lord Falconer and Graham Stringer. The Lords Committee reported on the draft Bill in its 15th, 24th and 37th Reports of the 1999-2000 session (HL 61, 86 and 130), and the Commons Committee in its Second and Third Special Reports of the 1999-2000 Session (HC 488 and 705). No change was made to the Bill following its publication in draft and prior to its introduction in the House of Lords on 7 December 2000. The Lords Committee then reported on the Bill's proposals for delegated legislation in its 2nd Report (HL 8) of the 2000/01 Session. Finally, the Committee also reported on the amendments made to the Bill by the Lords in its 10th Report (HL 38). BACKGROUND The existing deregulation order-making power 6. Sections 1-4 of the DCOA provide a mechanism to change primary legislation for the purpose of removing or reducing burdens on business and others. The order-making power in section 1 allows a Minister to amend or repeal any pre-1994 legislation which imposes a burden affecting any person in the carrying on of any trade, business or profession or otherwise, provided doing so would not remove any necessary protection. The Minister may impose a new, less onerous regulatory regime if he wishes. The order-making power is constrained by the subsequent three sections. Section 2 limits the maximum penalties which can be imposed if a deregulation order creates a new criminal offence, and prevents orders from creating new powers to enter, search or seize property by force or to compel people to give evidence. Section 3 ensures that interested parties have an opportunity to comment on any proposed order, that their comments are considered by the Minister and that Parliament is aware of their views when the proposed order is laid for Parliamentary consideration. Section 4 sets out the procedure for Parliamentary consideration of the proposed order. It provides for a period of 60 days for consideration before the draft order can be laid. 7. The deregulation order-making power under the DCOA has been used 48 times to date, to remove burdens from business and individuals which might not otherwise have received Parliamentary time. Orders have included, for example, removing the need for 3-yearly re-authorisation of deductions of union subscriptions from salary; permitting bookings at registry offices up to 12 months in advance instead of three; and relaxing the restrictions on opening hours of licensed premises over Millennium Eve. A full list of orders made under the power is at Annex A. 8. Deregulation orders are subject to thorough public consultation followed by detailed two-stage scrutiny by the Deregulation Committee in the House of Commons and the Delegated Powers and Deregulation Committee in the House of Lords. The special Parliamentary procedure which deregulation orders undergo (sometimes called the "super-affirmative" procedure, a term first coined by the House of Commons Procedure Committee in its 1995 Report on Delegated Legislation (HC 152)) affords a greater degree of Parliamentary scrutiny than that which ordinary affirmative resolution orders receive. First, the Minister lays his deregulation proposal before Parliament "in the form of" a draft order together with a full explanatory document. Following the 60 day period of Parliamentary consideration, during which time the proposal is referred automatically and simultaneously to the Parliamentary Deregulation Committees in both Houses, the Committees make their first report to their respective Houses. If the reports are favourable, the next stage is for the Minister formally to lay a draft order in each House, along with an explanation of any changes made compared to the earlier proposal. If the Minister is minded to accept any changes that are proposed to the draft order by the Committees or others between this stage and the final vote on the order, he must formally take up the draft order he has laid and replace it with another which incorporates the changes. The ability to make changes (minor or otherwise) to the draft order while it is being scrutinised and in response to the scrutiny is a key feature of the order-making power, which is not available to statutory instruments dealt with in the usual way. Ministers in charge of past deregulation orders have on several occasions taken the opportunity to change their draft order in line with recommendations from the Committees. On no occasion has a Minister ignored an adverse report from either Committee; the proposed order has always been re-cast or withdrawn accordingly. The Government intends to continue this practice in its use of regulatory reform orders, and Lord Falconer re-affirmed this intention in his evidence to the Delegated Powers and Deregulation Committee as cited in its 15th Report (HL 61 of the 1999/2000 session). Lord McIntosh of Haringey repeated that assurance at 2nd Reading (House of Lords Hansard, 21 Dec 2000, Col 899): "But it gives me the opportunity to repeat the assurance given by my noble and learned friend in May of last year. At that time the Government undertook to continue to respect the convention that no measure under the Deregulation and Contracting Out Act should be forced through in the face of the committee's opposition. The noble Lord, Lord Goodhart, and the noble Viscounts, Lord Goschen and Lord Bridgeman, asked for that assurance and I am happy to repeat the undertaking today." 9. The final procedural stages for Parliamentary scrutiny of draft deregulation orders are set out in Standing Orders (reproduced at Annex B). The Commons Committee produces a report on the draft order within 15 days. The Lords Committee has no set time period but usually reports within the same time period. Both Houses then vote on the relevant Committee report on the draft order (this constitutes the "super-affirmative" aspect of the Parliamentary consideration). The procedure leading up to the final vote on the order differs in the two Houses. In the Commons, the way in which the draft order is dealt with depends on how the Committee reported. If Committee members voted unanimously to approve the draft order, the Motion to approve it is put to the House forthwith. If they voted to approve the draft order following a division of the Committee, there is a debate on the Committee's report lasting a maximum of one and a half hours, after which the Motion to approve the draft order is put. If the Committee recommended that the order not be made, and the Minister still wished to pursue the order, he is faced with two options: either he may take up the draft order and replace it with an amended draft, or he may table a Motion to disagree with the Committee report. The latter has never occurred in practice. If it were to happen, the debate on the Minister's Motion, which would be amendable, would last a maximum of 3 hours. If the House supported the Minister's Motion, a Motion to approve the draft order would be put forthwith. The final stage in the procedure is the vote to approve the draft order. 10. In the Lords, following the publication of the Committee's second report, the Minister tables a Motion that the House should approve the draft order. There is also the opportunity for a debate, if any peer wishes it, on an accompanying motion at the same time as the motion to approve a draft order. The companion motion is moved first and can be amended and voted on. There is a Government undertaking that, in the event of a motion hostile to a draft deregulation order being agreed to by that House, the motion for the draft order would not be moved (House of Lords Hansard, 20 October 1994, col. 352). Lord McIntosh of Haringey re-stated this commitment during the Committee stage (House of Lords Hansard, 25 Jan 2001, Col. 371): "..there is a government undertaking that, in the event of a Motion amending a draft deregulation order being agreed by the House, the Motion for the draft order would not be moved. That was agreed by the previous government on 20th October 1994 and this Government have confirmed it. As the noble Lord, Lord Phillips, remarked, in its 15th report, last Session (HL 61, 1999/2000), the Delegated Powers and Deregulation Committee drew, "attention to the Government undertaking that, in the event of a motion hostile to a draft deregulation order being agreed to by the House of Lords, the motion for the draft order would not be moved. In oral evidence Lord Falconer accepted that .. if a motion hostile to a draft order were agreed to the Government would have to start the order-making process again from scratch (Q 64). This is clearly the strongest ultimate safeguard"." 11. In the Commons, the final procedural stages for draft deregulation orders depend on the nature of the report of the Deregulation Committee, and are set out in House of Commons Standing Order No 18 (Consideration of deregulation orders), as reproduced at Annex B. This requires that no motion to approve a draft order shall be made in cases where a committee has reported that the draft order shall not be approved "unless the House has previously resolved to disagree with the Committee's report." It will be for the House to determine finally how the new order making power should be dealt with, but the Deregulation Committee has not suggested that these procedures would be unsuitable for the new orders. Aspects of the proposed new order-making power 12. The current order-making power is limited in its scope. It has mostly been used for small items. The Regulatory Reform Bill seeks to extend the power so that it can be used more widely. The Government has published illustrative lists of the measures that it wishes to achieve by way of regulatory reform order, as set out at Annex C. The power is intended to be sufficiently wide, but no wider than necessary, to achieve such regulatory reforms. 13. There are a number of differences between the proposed new order-making power and the power under the DCOA. Orders under the new power, which are expected to be called regulatory reform orders, will be capable of: making and re-enacting statutory provision; imposing additional burdens where necessary, provided they are proportionate, that the order also removes or reduces other burdens and that the extent to which other burdens are removed makes it desirable to make the order; removing inconsistencies and anomalies in legislation, provided the order also removes or reduces other burdens; dealing with burdensome situations caused by a lack of statutory provision to do something; applying to legislation passed after the Bill if it is at least two years old when the order is made and has not been amended in substance during the last two years; relieving burdens from anyone, including Ministers and government departments but not where only they would benefit; and allowing administrative and minor detail to be further amended by subordinate provisions orders, subject to either negative or affirmative resolution procedure. 14. The test of maintaining necessary protection is carried over from the DCOA and supplemented by an additional test that no order should prevent anyone from exercising an existing right or freedom which they might reasonably expect to continue to exercise (the "reasonable expectations" test). Any burdens imposed by an order must be proportionate to the benefits expected from them. In addition to the objective of proportionality in clause 1, two further stringent tests (fair balance and desirability) apply if an order would increase or impose a burden. The requirements for extensive public consultation and thorough scrutiny by two Parliamentary Committees will remain, but Ministers bringing forward regulatory reform orders will be required to present more explanatory information to Parliament than they did with deregulation orders, to reflect the wider powers and additional safeguards. 15. More generally, from January 2001, the Government has applied a Code of Practice to all its written consultation exercises under which, as a general rule, a minimum of 12 weeks should be allowed for consultation (the consultation period should only be for less than 12 weeks in exceptional circumstances and, where the period is less than twelve weeks, the document should state Ministers' reasons for the restriction, and what special measures have been taken to ensure that consultation is nevertheless as effective as possible). The Code has been issued by the Cabinet Office and is available on line 1. In addition to publication on the policy Department's own website: 1http://www.consultation.gov.uk all consultation documents on regulatory reform orders will be published on the Cabinet Office website 2; and 2 http://www.cabinet-office.gov.uk/regulation/Bill/condocs.htm all consultation documents will be published on the Internet Register at UKOnLine 3. 3 http://www.ukonline.gov.uk/online/citizenspace/default.asp 16. These cumulative procedural and legal safeguards are illustrated at Annex D. 17. During the Report stage of the Bill, Lord Falconer of Thoroton (House of Lords Hansard, 13 Feb 2001, Col 215) undertook on behalf of the Government to report on the operation of the Bill once enacted: "However, I can and do undertake on behalf of the Government that a Minister of the Crown will report to this House three years after enactment--I say three years rather than two years; I am not sure that that is a critical point between us--on the operation of the regulatory format should it become an Act. I undertake that that report will cover the operation of the order-making process and any associated constitutional and procedural issues. As the debates to date have indicated, these are areas of key concern to your Lordships' House. It is right that the government of the day should address them fully. After that first report, it would be for the government of the day and the House to decide on the need for any further report. The timing, scale and scope of the next report seems to me a matter best decided after that. I do not think that it would be right for such reports to reopen matters of policy which had been debated fully during the consultation, scrutiny and approval stage of the order-making process. There would be no point if a reformed regulatory regime order was working smoothly. Indeed, it could cause uncertainty. But the process--how the system is working--needs to be looked at." The existing enforcement provisions 18. Section 5 of the DCOA was designed to provide protection for businesses against what was described in debate as "over-zealous or unreasonable application of regulations" (House of Lords Hansard, 11 October 1994, Col 832). Officers in central and local government enforce a number of regulatory requirements, for example, the requirements on public houses to limit their opening hours, to provide facilities such as lavatories for customers and staff, to have arrangements in place to ensure safe storage and preparation of food and not to sell alcohol to children. Section 5 allows Ministers by order to apply the enforcement procedures set out in Schedule 1 of the DCOA to named pieces of legislation. This gives Ministers powers to: (i) require that when an enforcement officer informally tells a business that it should take some remedial action, before any question of formal action arises, the business is entitled on request to a written statement making clear what action is legally necessary (as opposed to mere advice) and why; (ii) require enforcers, where they take immediate enforcement action which would impose a significant cost, to provide a statement as soon as practicable explaining the reasons for the immediate action; (iii) require enforcers to issue businesses with a notice that they are "minded to" take enforcement action. The business would then be entitled to have its point of view heard and taken into account within a specified period before any formal action was taken; (iv) require that, when formal action is taken, the business should be told exactly what rights it has to appeal; and (v) apply relevant provisions to third parties who have a direct economic interest in an enforcement decision. 19. Section 5 has been applied directly only once, in the Deregulation (Improvement of Enforcement Procedures) (Food Safety Act 1990) Order 1996, (S.I., 1996, No. 1683) 4. 4The approach has also been applied indirectly by being written into Section 86 of the Housing Grants, Reconstruction and Regeneration Act 1996 and Section 377A of the Housing Act 1985 (inserted by the Housing Act 1996). Statutory guidance under the Health and Safety at Work etc Act 1974 issued in February 1996 also included the Section 5 procedure but this was replaced on 1 April 1998 by new guidance based on the Enforcement Concordat. 20. In December 1996, the then Conservative Government consulted on proposals to apply section 5 in the field of trading standards, care services and environmental health. The consultation exercise showed that local authority enforcers felt the "minded to" provisions were bureaucratic and could be manipulated by illegitimate businesses. Businesses were not entirely convinced either, and sometimes confused the "minded to" notice with formal enforcement action. However, there was a consensus about the value of discussing regulatory issues with business, explaining their rights and making a clear distinction between statutory requirements and good practice. The new policy on enforcement The Enforcement Concordat 21. Following the 1997 election, the Government reviewed the results of the consultation exercise. It decided not to pursue the section 5 procedures but to adopt a new approach based on co-operation between enforcers and those subject to enforcement. Representatives of business, the voluntary sector, the enforcement community and consumer groups were closely involved in the development of the Enforcement Concordat. The Concordat is a non-statutory code that describes for businesses and others what they can expect from enforcement officers. Central and local enforcement bodies commit themselves voluntarily to its principles and procedures. The full text of the Concordat is at Annex E. 22. The principles can be summarised as follows: standards - service standards that business can expect from local authority enforcers will be published annually with performance against them; openness - information will be given in plain language and advice will be disseminated widely; helpfulness - staff will work in the basis that prevention is better than cure; complaints procedures - well-publicised and timely complaints procedures will exist; proportionality - any action required will be proportionate to the risks; and consistency - arrangements will be in place to ensure that different enforcers treat businesses in the same way. 23. The Concordat also sets out procedures, including that: a business will be told what is good advice and what is a legal requirement; as far as possible in the circumstances, there will be discussion before formal action is taken; and if action does have to go ahead for urgent reasons, this will be followed by a prompt written explanation of the reasons. 24. The Concordat has similar objectives to the section 5 powers but excludes those elements of section 5 with which enforcers and businesses had difficulty. Enforcers signing up to the Concordat do so voluntarily, and are encouraged to monitor their progress against it. Under section 5, procedures were imposed by Ministers. 25. Announcing the launch of the new policy on 4 March 1998 (House of Commons Hansard, columns 692-94), the Parliamentary Secretary for the Cabinet Office said that where "minded to" procedures had been applied in primary legislation, these would be amended as the opportunity arose. The one order made under section 5 (see paragraph 19 above) would cease to have effect in England and Wales if the Bill were to receive Royal Assent. 26. In its 15th report (HL 61, 1999/2000), the House of Lords' Delegated Powers and Deregulation Committee commented on these provisions saying that: "In October 1999 the Committee considered the proposal for a delegated legislative power contained in the new consultation document and saw no objection to it. We agreed with the premise that the way in which regulations are enforced is as important as the regulations themselves, and commented as follows: "Clearly the voluntary approach would only be effective in achieving consistency in enforcement practice if the overwhelming majority of enforcement agencies implement the Concordat within a reasonable timeframe. We note that in the first 18 months of the Concordat's existence only a quarter of local authorities signed up to it, which is presumably why the Government is seeking the powers. No doubt Parliament, in examining any bill or draft bill, will want to be told the current figures for local authority subscription to the Concordat and, if the percentage is still low, to examine possible reasons for this." Our view on this provision remains unchanged." 27. By January 2001, the Concordat had been adopted by 84% of all local authorities in England, Scotland and Wales (including all County Councils in England) and by 80% of central government enforcement agencies. A full list of the organisations that have adopted the Concordat can be found on the Cabinet Office's website 5; it is updated monthly. In the light of take-up of the Concordat, the Government is seeking only a reserve power. 5http://www.cabinet-office.gov.uk/regulation/PublicSector/Enforcement.htm Enforcement Provisions in the Bill 28. The Bill would repeal section 5 of the DCOA and replace it with a power for Ministers to set out a code of good enforcement practice. This would provide a safeguard if problems were encountered with the voluntary approach. The policy, including the "light-touch" nature of the reserve power, was developed with input from a consultation exercise involving both enforcers and those subject to enforcement. 29. The proposal is designed to provide assurance to business, the voluntary sector and others that the Government would be able to bring pressure to bear on enforcers that failed to apply best practice along the lines of the Concordat. A code made under this power would not be directly binding on enforcers. But businesses found by a court or tribunal to be in breach of a statutory requirement would be able to ask for the enforcer's failure to follow the code to be taken into account in determining the appropriate penalties, award of costs or other action. 30. The power is intended to counter unjustifiably inflexible or over-zealous enforcement. The provisions of the Bill allow a code to be tailored to address the particular enforcement problem that had emerged. Before making an Order the Government would consult publicly on why and how the power should be used; any such consultation would follow the Government's Code of Practice on Written Consultation 6. This would explain the underlying circumstances, the enforcement bodies or activities that would be affected and the proposed content of the code. In accordance with the requirements of Good Policy Making: A Guide to Regulatory Impact Assessment 7, published by the Cabinet Office, the consultation document would be accompanied by a thorough regulatory impact assessment, setting out the expected benefits to business as well as the impact on enforcers. 6http://www.consultation.gov.uk 7available at http://www.cabinet-office.gov.uk/regulation/2000/riaguide/default.htm THE BILL 31. The clauses of the Bill may be conveniently divided into four main groups: Clause 1 sets out the order-making power and the context within which it can be exercised. Clause 2 explains what is meant by the term "burden" and related expressions. Clause 3 sets out the tests which have to be met by proposed orders, and limits the level of criminal penalties which can be imposed by an order. The flow-chart at Annex F details the preliminary checks against vires which a Minister must consider before embarking along the route of a regulatory reform order. The second group of clauses is concerned with the mechanics of order-making, which are only slightly different to the equivalent provisions in the DCOA. The flow-charts at Annexes G and H set out the steps involved, from identification of burdensome legislation which could be reformed through to the Parliamentary procedures which an order must undergo. Clause 4 provides that orders shall be made by affirmative resolution, and sets out how subordinate details of matters addressed by orders can be modified by either negative or affirmative resolution. Clause 5 sets out the consultation a Minister must undertake prior to laying before Parliament details of his proposed order. Clause 6 gives details of the information the Minister must provide to Parliament alongside the proposed order. Clause 7 governs the disclosure requirements for representations made during consultation on proposed orders. Clause 8 sets out the procedure governing Parliament's scrutiny of draft orders. Clauses 9, 10 and 11 make provision for Ministers to set out codes of good practice in relation to enforcement of statutory requirements. The final group of clauses is concerned with supplementary matters. Clause 12 deals with repeals and savings. Clause 13 makes consequential amendments to section 6 of the DCOA. Clause 14 covers interpretation of terms and clause 15 deals with the short title and territorial extent of the Act.

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Prepared: 6 March 2001