APPENDIX 2
Letter from the Chairman of the Committee
to the Minister for Regulatory Reform
Following yesterday's oral evidence session,
there are still a few matters on which we seek clarification.
We have opted to raise these matters in writing, rather than referring
to them during the oral evidence session, because they are relatively
minor in nature. We are likely to publish your response to these
questions alongside the Cabinet Office memorandum, to ensure that
the import of the memorandum is entirely clear.
PARAGRAPH 3.2 OF
THE CABINET
OFFICE MEMORANDUM
The matters on which we seek clarification all
arise from paragraph 3.2 of the Cabinet Office memorandum. Paragraph
3.2 lists a number of ways in which the Regulatory Reform Act
2001 can, in the Government's view, be used to deliver reforms.
This list appears to contain a number of inaccurate statements.
In particular:
Transposing EU directives
The memorandum suggests that regulations made
under section 2(2) of the European Communities Act 1972 to implement
EU directives in UK law cannot amend primary legislation. Clearly,
such a suggestion would be incorrect, given that section 2(4)
of the 1972 Act enables section 2(2) regulations to make any such
provision as might be made by Act of Parliament.
What is your understanding of the scope of section
2(2) regulations, and the scope for implementing EU obligations
under the Regulatory Reform Act?
Simplification and modernisation of whole regimes
The memorandum suggests that the Regulatory
Reform Act enables the tidying up and modernisation of overlapping
and out-of-date legislation, with nothing more.
Our understanding of the Act is that it would
enable a proposal to effect such tidying up and modernisation
only so long as the proposal reduced or removed a burden.
Tidying up or modernising an area of law is not a purpose which
can be achieved under the Act.
Do you agree with our interpretation of the powers
of the Regulatory Reform Act in respect of tidying up and modernisation
of overlapping and out-of-date legislation?
Broadening powers
The memorandum suggests that regulatory reform
orders can be used to broaden the powers of an individual or organisation,
regardless of what the proposed new powers may be.
It is correct that the Regulatory Reform Act
may be used to extend the statutory powers of a person or body.
However, in our opinion, such powers can be extended only in an
appropriate and relevant way. The extension could make it easier
for the person or body to carry on their existing activities,
for example by creating or enlarging a power to borrow. Alternatively,
it could result in the person or body engaging in activities which
they previously did not engage in, if the absence of power to
engage in them can reasonably be regarded as affecting the person
or body in the carrying on of their existing activities. We consider
it is doubtful whether reform under the Act could add powers to
undertake activities wholly unconnected with the person or body's
existing purposes.
What is your understanding of the extent to which
regulatory reform orders can be used to broaden the statutory
powers of a person or body?
Removing restrictions and requirements
The memorandum states that there is no reason
in principle why a regulatory reform order could not be used to
set up a new agency to oversee a simplified regime. No regulatory
reform order has yet done this. The memorandum provides no supporting
argument to substantiate this claim.
On what grounds do you consider that a regulatory
reform order could be used to set up a new agency to oversee a
simplified regime?
Thank you for your consideration of these matters.
We look forward to receiving your response.
2 July 2003
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