Subordinate provisions
36. It is proposed that the 'transitional provisions'
of the Order be designated as subordinate for the purposes of
section 4 of the Regulatory Reform Act, thus enabling later amendment
by means of a 'subordinate provisions order'; and that any such
subsequent subordinate provisions order be subject to affirmative
resolution procedure. However, the original explanatory memorandum
did not explain, as required under s6(2)(g) of the Regulatory
Reform Act, why it was proposed that these provisions be so designated.
37. The Department's first response to our invitation
to do so was unsatisfactory.[22]
It gave two reasons for the designation. The first was that "the
transitional claim provisions are quite detailed and complex and
it was considered preferable not to include them on the face of
an otherwise relatively straightforward Act," the Department
going on to note that "the amendment to section 7B(1) of
the Vaccine Damage Payments Act 1979 ... made by article 5 of
the Order provides a clear crossreference to the Order."
This is, however, misconceived. The fact that a provision of an
RRO does not form part of the Act it reforms does not of itself
justify its designation as subordinate. Designation of a provision
as subordinate is done in order to enable its subsequent amendment
without the need for the whole regulatory reform procedure to
be repeated.
38. This brings us to the Department's second reason
for the designation of these provisions as subordinate. "As
the provisions are complex," it says, "it is possible
that experience of working them may indicate the need for finetuning
at a later date and it appears to the Department that it would
be sensible to deal with this by a subsequent [subordinate] provisions
order."[23] Bearing
in mind that a subordinate provisions order could be brought forward
without any prior consultation; that the transitional provisions
in the Order are as provided for in the original consultation
on the proposal; and that the original consultation did not envisage
that the transitional provisions might be subject to further amendment,
we asked the Department in what circumstances it might envisage
amending these provisions, and to what end.[24]
39. The Department's reply to our further question
focussed on those who might wish to take advantage of the ability
to make a claim where advice had previously been received that
the conditions would not be met. Noting that any such cases may
have their origins some 20 years or more ago, the Department argued:
It is possible that experience of applying the
conditions set out in the draft order may throw up situations
that we could not have envisaged and where unreasonable constraints
might be imposed on cases that were considered to have merit.
Given the overall small number involved it might then be thought
to be neither a good use of public funds nor a worthwhile use
of Parliamentary time to go through the full RRO process to effect
an amendment. Therefore, although the provisions of the draft
Order reflect those described in the consultation document, we
felt it prudent to allow for possible amendment without the need
for a further RRO.[25]
The Department also noted that "while it is
possible that an amendment could prescribe tighter conditions
it is far more likely that, if a subordinate provisions order
were ever to be considered, the intention would be to relax the
conditions."[26]
40. We are content that the designation of the
transitional provisions as subordinate is appropriate for the
purposes to which the Department has suggested it may be put;
and that the affirmative resolution procedure should apply to
any ensuing subordinate provisions order. As we note above,
however, the transitional provisions in the Order are as provided
for in the original consultation on the proposal, and the original
consultation did not envisage that the transitional provisions
might be subject to further amendment. We therefore suggest that
the Department will wish to consider before bringing forward any
subordinate provisions order what consultation it may be appropriate
to undertake; and this will be a matter we will examine as and
when any such order comes before us.[27]
Drafting
41. It appeared to us that the expression "six
years from the date of the vaccination", used in article
3 of the proposed Order, created uncertainty as to whether the
date of the vaccination was to be included or excluded in calculating
that period. Noting that the 1979 Act currently avoids this uncertainty,
we suggested to the Department that the Order be revised to do
the same.[28] We are
pleased to note that the Department has accepted that the current
wording causes uncertainty, and has undertaken to make an appropriate
amendment.[29] We
recommend that the proposed Order be amended accordingly.
Report under Standing Order No.
141
42. We recommend that the proposal should be amended
as proposed in paragraph 41 above before a draft Order is laid
before the House.
1 Copies are available to Members from the Vote Office
and to members of the public from the Office for National Statistics.
It is also available on the Cabinet Office website http://www.cabinetoffice.gov.uk/regulation/act/
proposals.htm. Back
2
Fourth Report from the Deregulation Committee, Session 2000-01
(HC 450), The Final Deregulation Proposals, paras 10-42. Back
3
Procedures for The Determination of Paternity and on The Law
on Parental Responsibility for Unmarried Fathers, available
on the Lord Chancellor's Department web site http://www.open.gov.uk/lcd/consult/general/pat-con.htm. Back
4
Fourth Report, op cit, para 29. Back
5
ibid, para 39. Back
6
ibid, para 29. Back
7
Explanatory statement, paras 11-13. Back
8
See explanatory statement to draft Order laid 9th January; also
correspondence attached to explanatory statement to draft Order
laid 11th March. Back
9
See Votes & Proceedings of the House of Commons, 9th January
2002, Appendix I, item 2; and explanatory statement to that draft
Order, para 10. Back
10
Explanatory statement to draft Order laid 9th January, para 15. Back
11
Q2. Back
12
ibid. Back
13
Copies are available to Members from the Vote Office and to members
of the public from the Department for Work and Pensions. It is
also available on the Cabinet Office website http://www.cabinetoffice.gov.uk/regulation/act/
proposals.htm. Back
14
Standing Order No. 141(2). Back
15
Where a criterion specified in the Standing Order does not appear
in this Report, there are no matters which we wish to raise under
that heading. Back
16
See Appendix 2 for a list of those diseases currently so specified. Back
17
See explanatory statement, para 10. Back
18
Explanatory statement, Annex B. Back
19
Regulatory Reform Act 2001, s8(5). Back
20
Standing Order No. 141(13). Back
21
Standing Order No. 18(1). See also sub-para (2) for the procedure
where the Committee recommends that a draft Order should not be
approved. Back
22
Appendix 2. Back
23
ibid. Back
24
Appendix 3. Back
25
Appendix 4. Back
26
ibid. Back
27
As per Standing Order No. 141(1)(iii). Back
28
Appendix 1. Back
29
Appendix 2. Back
