Own-initiative amendments to draft
orders between first and second stage scrutiny
5. The Regulatory Reform Act provides that in preparing
a draft regulatory reform order for submission to Parliament for
approval under section 1 of the Act (i.e. for 'second-stage' scrutiny),
the responsible Minister shall have regard to "any representations
made during the period for Parliamentary consideration and, in
particular, to any resolution or report of, or of any committee
of, either House of Parliament" with regard to the proposal
for the order laid for 'first-stage' scrutiny.[5]
6. This provision requires the Minister to take into
account all representations received during the period for Parliamentary
consideration when preparing the draft order. The provision does
not restrict the changes which may be made to those made which
are in the light of representations or Parliamentary reports.
7. In his letter to us the Minister states that
the fact that the Regulatory Reform Act assumes
that changes will be made in response to representations does
not preclude changes being made for other reasons . . . should
a department wish to make a beneficial amendment, then that amendment
should be able to be made. It would be illogical to ignore changes
that improved the working of the order, so long as the change
could not be seen in any way to alter the scope of the proposal
that was originally consulted on.[6]
The ability to provide for amendments to be made
to draft orders between stages is one of the strengths of the
'super-affirmative' procedure, which makes provision for a form
of pre-legislative scrutiny of regulatory reform orders. As the
Minister states, it would be odd if a Department identified a
defect in an order after the first stage of scrutiny, but was
not able to make a change to improve the working of the order
or to close a loophole because representations had not been made
to that effect.
8. We are nevertheless concerned that departments
should not be able to make changes to draft orders between first
and second stage which alter the nature or scope of the order.
The Minister has stated that if a suggested change is likely to
affect the persons consulted on the proposal for the order so
that they might have expressed a different view in response to
the consultation, then the department concerned would be expected
to undertake further consultation on the issue. He has indicated
that if departments are unclear as to the substantive effect of
the proposed changes, they should seek without prejudice advice
from the Parliamentary committees on the specific amendments proposed,
the reason for making the changes and their potential effect.[7]
9. We strongly agree with the Minister's view
that Departments should be expected to get their orders right
first time. We nevertheless consider that it may be sensible to
allow for minor changes to be made to draft orders between first
and second-stage scrutiny on the Department's own initiative,
if it is clear that those changes would improve the working of
the order and would not involve changes of principle on which
consultees would be expected to have a view. We consider
that all such changes should be identified as such, and explained
in full, in the explanatory statement laid before Parliament
alongside the draft order. If, in our view, the amendments are
of sufficient substance that the department concerned should have
consulted upon their likely effect, we will decline to recommend
approval of the draft order until such consultation has taken
place.
10. The Minister considers that it would be right
for Departments to seek without prejudice advice on specific amendments
not arising from representations, the reasons for making such
changes and their potential effect. We have indicated in earlier
Reports that we are prepared to give without prejudice advice
to Departments on the appropriateness of proposals for the regulatory
reform procedure, before proposals are laid before Parliament.[8]
The circumstance envisaged by the Minister is a different one,
where the Parliamentary process is already well under way. While
we will consider requests which we receive on their merits, we
do not necessarily consider that it will always be appropriate
to issue advice on proposed amendments to regulatory reform orders
between the first and second stages of formal scrutiny. Where
we decide it is appropriate to give without prejudice advice,
our presumption will be that the process should be as transparent
as possible.
Early sight of consultation responses
11. The 2001 Act requires departments to consult
extensively on a proposal for a regulatory reform order before
proceeding to lay the proposal before Parliament. Currently, we
receive copies of the responses to the consultation document at
the time at which the proposal is laid.
12. We are pleased to note that the Minister has
now offered to ensure that departments pass responses to our committee
staff as far as possible in advance of the date on which the proposal
is scheduled to be laid. The extra time that this should provide
in which to scrutinise the responses should prove valuable in
ensuring efficient and effective scrutiny, particularly where
a large number of responses were received to a particular consultation
document.
13. The Cabinet Office has arranged for Committee
staff to receive copies of responses to the consultation on the
forthcoming Patents and Fire Safety regulatory reform orders.
We appreciate the willingness to cooperate shown by the departments
concerned.
1 Third Special Report of Session 2001-02, The Handling
of Regulatory Reform Orders (III), HC (2001-02) 1272 Back
2
The RIU is the unit in the Cabinet Office responsible for co-ordinating
the Government's regulatory reform programme. Back
3
As distinct from the parliamentary sessions: the 2001-02 Session
ran from 20 June 2001 to 7 November 2002; the 2002-03 Session
commenced on 13 November 2002 and is expected to end in November
2003. Back
4
Appendix 1, para 3.2: this lists what the Government regards as
the advantages of the way in which the Regulatory Reform Act delivers
reforms. Back
5
Section 8(4) of the 2001 Act Back
6
Appendix 3 Back
7
Ibid. Back
8
Third Special Report, HC (2001-02) 1272 Back
